Home > Oz Politics > Habib again

Habib again

February 21st, 2005

The Monday Message Board has a lively discussion of the Habib case, and I thought I’d make my own observations. Based on the evidence I’ve seen, I’m fairly confident of three things

* Habib was up to something connected with Islamic militants in Afghanistan

* After his arrest he was tortured (in Pakistan and Egypt) and subject to cruel and degrading treatment (in Guantanamo Bay)

* The Australian government knew about and approved Habib’s treatment[1].

A lot of participants in the debate seem to assume that, if you accept the first point, the second and third don’t really matter. I would have hoped that this kind of position didn’t need to be refuted, but that’s apparently not the case, so I’ll try.

Update A lengthy comments thread already, but it’s interesting that no-one, as far as I can see has disagreed with my factual conclusions. If there are people out there who think that Habib is an innocent bystander they haven’t shown up here. And, although there are plenty of commenters willing to defend torture, no-one, it seems, is willing to put their name (or handle) to a claim that the government is telling the truth.

First, torture is evil.

Second, whether or not Habib was guilty as insinuated (he’s never been charged), if you approve of torture you approve of torturing innocents because this will inevitably happen. In fact, it already has.

Third, Habib’s own case illustrates the point that torture doesn’t work, and is counterproductive. The Americans had him (and many of his alleged accomplices) for three years and still couldn’t pin anything on him. If he was a terrorist to start with, he’s a hardened terrorist now. If he was a noisy malcontent, he and all his friends have a lot more reason to be noisy and malcontented, and some will probably go further.

fn1. Of course, with the kind of definitional legerdemain that characterises this government, no evidence could possibly prove this claim. In matters of this kind, things are now set up so that everyone knows and nobody knows.

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  1. observa
    February 21st, 2005 at 21:58 | #1

    And fourthly(to assist the good professor’s moral clarity here), IF the first three points are obvious to all generally, then a Beazley led Labor Opposition, now takes the same substantive position as the Howard Govt does to all of this. Well apart from some semantics over ‘interrogation’ vs ‘interviews’ and believing that ‘some’ of our troops should return from Iraq to be better deployed in our SE Asian back-yard presumably. Where and what for is anyone’s guess, now that our troops engaged in tsunami relief efforts are coming home.

  2. observa
    February 21st, 2005 at 22:07 | #2

    Oh, and we might add that if Beasley thinks ‘some’ torture or simply cruel treatment being bandied about here is good enough to prepare our troops in the event of capture, then presumably he believes the same treatment is good enough for captives of war, like Habib and Hicks. Just for moral clarity you all understand.

  3. February 21st, 2005 at 22:19 | #3

    Exceptionally well put, John, and displaying a very nice moral clarity, as W might say.

  4. observa
    February 22nd, 2005 at 00:15 | #4

    The next logical question for Mark to answer himself it seems is, would such moral clarity allow him in all conscience to vote Beazley Labor from here on, or rather like John, does his only moral path lie with the Greens, or perhaps the Democrats?

  5. February 22nd, 2005 at 03:21 | #5

    Calling torture, or anything for that matter “evil” is highly subjective. I would contend that it definately has acceptable uses.

  6. cp
    February 22nd, 2005 at 04:22 | #6

    Nic – such as?

  7. Ros
    February 22nd, 2005 at 07:25 | #7

    I would suggest that you fail in your refutation JQ.
    I don’t think that the Australian government and it’s agencies are hinting obliquely about Habib.
    Further if you are Howard you don’t have to be charged, being guilty of “sleight of hand� is sufficient proof of guilt of something, whereas habib’s misrepresenting of facts leaves him innocent of other than being up to something!
    Had him for three years and couldn’t “pin� anything on him. Interesting terminology, they were trying to frame him? Why? Or is it that you know that Habib told them nothing of value or you consider that not to be relevant? It might be that your argument would be stronger if you stated what it is that you seem to be saying, this is not a war.
    If he was a noisy malcontent, he and all his friends have a lot more reason to be noisy and malcontented, and some will probably go further. I see my argument that it will not be the fault of Habib (or his friends apparently) if he now succeeds in killing Australians because we were mean to him is already being advanced. I wonder how you know that terrorism is caused by the misdeeds of others rather than a fanatical belief in the right to kill in order to impose one’s morality on others, or at least in the case of Habib and friends, or his new friends. Old ones don’t seem that keen.
    This is an interesting argument. I know that I would approve of torture to save the life of someone close to me and I suspect that most Australians would also approve. So torture becomes not an evil but an act that is right or wrong in virtue of the value of it’s consequences. Your position is that some actions are right or wrong in virtue of something other than the value of their consequences. Therefore you are left with the position that there are certain values that according to deep, widespread moral belief, should be respected by individuals in their own individual behaviour and not be promoted, or in your position allowed, period. Thus for you there is no option such as torture to save say your child You are entitled to your view. However despite your claim that “torture “ is evil others may be of the view that consequences have some moral weight in any act and I challenge you to demonstrate why I may not be entitled to that view. Or that you never hold to it about any act by an individual or a state.
    If you concede my right and the belief of many Australians to hold to the view that the use of torture has some value in terms of it’s consequences then you are left with, torture doesn’t work. But it seems to me that just leads to, the act is right or wrong according to the value of its consequences.
    Can’t say I am persuaded by your reference to why it doesn’t work
    You also suggest some kind of slippery slope I think. That is if you allow torture then you allow for the torture of innocents, it is inevitable. Thus you must not tolerate torture, or inhuman and degrading treatment. If you have a criminal legal system and gaols then innocents will go to gaol, it is inevitable. Thus as gaol may be described at the very least as inhuman and degrading then one cannot tolerate goals.
    You would have hoped that this position didn’t need to be refuted, morality is as you and your friends decide it is.

  8. John Quiggin
    February 22nd, 2005 at 08:14 | #8

    I don’t think I can usefully engage in debate with someone who supports torture. Certainly I’m not going to argue about the subtle nuances of my post.

    I

  9. Fyodor
    February 22nd, 2005 at 08:25 | #9

    Ros,

    That last post was torture, but at least you attempted to make one point somewhat clear: torture is evil in your view if it has negative consequences:

    “So torture becomes not an evil but an act that is right or wrong in virtue of the value of it’s consequences.”

    So if a man is locked up for three years illegally, is tortured and then released without being charged with any crime, then the torture inflicted upon him must be evil, yes?

    Glad we cleared that up.

  10. Ros
    February 22nd, 2005 at 08:52 | #10

    Fair enough JQ. So I can be sure that Alan Dershowitz is not on your xmas list. How would you go with a fellow Australian academic, Julie Clarke, law deakin. Though as she is game to say yes there are situations where torture is justified she is probably used to other academics refusing to talk to her. And again off the top of my head, Britain’s Appeals court ruled last year that evidence obtained by torture is acceptable in british law courts, so I guess they are not on your xmas list either.

  11. michael.burgess
    February 22nd, 2005 at 08:58 | #11

    On the issue of torture, clearly the events in Iraq cannot be condoned, and are not just the result of some bad individuals but systematic of a wider problem, and have and will cause the deaths of many foreign and Iraqi troops and civilian personnel. However, John cops out when he describes all torture as evil etc. In the extreme event (which is becoming ever more likely) that security forces hold a suspect who has knowledge of the whereabouts of a nuclear device or other WMD, the vast majority of the population (including those who strongly oppose torture) would quite rightly expect security forces to do anything necessary (including executing innocent relatives in front of them) to obtain the necessary information. To not acknowledge this is to pass on all moral responsibility to those faced with the dilemma whether to torture or not.

    A more complex issue beyond torture, is what do we need to do as a society to both ensure that security forces do not exceed their authority, which history shows they often do, and also provide ourselves with the tools to fight Islamic fascism, which is a far greater threat than the vast majority of liberal minded individual are willing to concede. By refusing to acknowledge this fact and engage with the issue of terrorism seriously, they have already allowed conservatives to dominate the debate.

  12. Geoff Honnor
    February 22nd, 2005 at 09:27 | #12

    Could someone define “torture” for me in the context of this thread? I suspect I’d find any form of incarceration “cruel, degrading and inhumane ” if it was applied to me personally. And had I been incarcerated at Guantanamo I would obviously – regardless of circumstance – invoke a torture narrative upon my release as a matter of course. Where is the advantage in “thanking” one’s jailers? Where “truth” lies in all of this is clearly a matter of perspective. If you don’t accept the War on Terror thesis then obviously everything that flows from it is deeply suspect – including the detention of individuals suspected of engagement therein. If you do, then you presumably see incarceration and interrogation as essential aspects of military engagement. I don’t think that any rational person could sustain a case for beatings, deliberate maiming or physical injury or the calculated infliction of pain, regardless of circumstances. But what of psychological pressure? Prolonged interrogation?

  13. Ros
    February 22nd, 2005 at 09:34 | #13

    Interesting michael, if i recall properly Julie clarke spoke of a german police chief who made the conscious decision to blow his job by ordering the torture of an individual to try and save a child’s life. To some he would be a hero, to john evil and not a matter that he would debate.
    our hypocrisy on these matters is interesting. As I understand it there is legislation in Queensland now that could allow for court ordered ceasarians on women considered to be living in a way that threatens their unborn child. Some might view this as equating pretty close to state sanctioned torture. WA courts just ruled that an adolescent Christian scientist could be forced to have blood transfusions when and if the need arose as part of his treatment despite his protestations. perhaps the decision was made that these act would be right by virtue of the value of their consequences.
    Zyodor I would suggest that all acts have negative and positive consequences, so no it does not follow that I am of the view that Habib ‘s treatment was evil because he didn’t get charged. Consequentialism informs our laws, but I don’t see it as limited to the parameter “charged”

  14. nicolo
    February 22nd, 2005 at 09:43 | #14

    Observa, Ros,
    We create our own reality in the ordinary course of our daily lives, all the more so for today’s smart new Republicans and rightists who brag about doing just that.
    Your reality sees torture as a nuanced kinda thing to be engaged in by your friends. Nobody could possibly tell you that you weren’t choosing, consciously, the world in which you will live, and neither shall I.
    Also, like John, I won’t engage you in your chosen reality; you’ve had your say and now I’ve had mine.

  15. Fyodor
    February 22nd, 2005 at 09:43 | #15

    Ros,

    What were the positive consequences of Habib’s illegal incarceration by a foreign government and (alleged) torture?

  16. Ros
    February 22nd, 2005 at 09:56 | #16

    could go on Fyodor but will acquiese to Nicolo’s polite request to say no more.

  17. Fyodor
    February 22nd, 2005 at 10:01 | #17

    Ros,

    It’s obvious that Nicolo made no such request, so I’ll repeat my question:

    “What were the positive consequences of Habib’s illegal incarceration by a foreign government and (alleged) torture?”

  18. Homer Paxton
    February 22nd, 2005 at 10:04 | #18

    Ros apparently believes ‘terrorist suspects’ are guitly until they can prove their innocence but for the rest of us plebs we can be innocent until proven guilty.

    What happens when you kill someone on the basis of the tortured statement and it turns out false as it usually is.

    Ros there has been a huge change in police attiudes since DNA came on the scene as a lot of coppers found out guilty people who had not been charged actually were innocent.

    Funny about that.

    Michael,
    what was perpetrated in the Iraqi gaols was merely what the Israelis had done for years to Palestinians as anyone who has read Amnesty International reports could report.

  19. Dave Ricardo
    February 22nd, 2005 at 10:05 | #19

    Michael, so if the authorities thought (mistakenly, of course) you had a nuclear weapon hidden somewhere, it’d be OK for them to torture you and execute your relatives in front of you?

    Not very likely, but they’ve made mistakes before. And they’ve fitted up innocent people before, too.

  20. Ian Gould
    February 22nd, 2005 at 10:18 | #20

    It should be remembered that torture was a common instrument of jurisprudence in both Europe and Asia up until about the 17th century.
    It wasn’t abandoned because of some great moral awakening. It was abandoned because it was found to be ineffective because it produced too many false confessions.

  21. Geoff Honnor
    February 22nd, 2005 at 10:20 | #21

    ” Ros there has been a huge change in police attiudes since DNA came on the scene as a lot of coppers found out guilty people who had not been charged actually were innocent.”

    And conversely of course Homer, with DNA evidence, a lot of people who might once have got off are now more likely to be charged. Swings and roundabouts.

  22. michael.burgess
    February 22nd, 2005 at 10:24 | #22

    Dave, etc. I have made clear that I would only support torture in a ticking bomb situation. The problem with torture in a situation such as where the police felt they needed to do it do save a child’s life is not that it is necessary immoral if it did result in a child life being saved but that history shows very clearly that Police and other authorities would use it indiscriminately including when under pressure to close a case or simply to get good results and earn a promotion. But back to the ticking bomb, I would suggest opponents are being somewhat hypocritical here. If a nuke was going to destroy a city where they lived within the next day or two if every effort was not made to extract information on its whereabouts, then I have no doubt you would at least hope that the authorities would resort to torture even if you condemned it afterwards – a bit like Tibetan Buddhists who eat meat but condemn those who kill animals.

  23. John Quiggin
    February 22nd, 2005 at 10:36 | #23

    I’ve posted previously on the ticking bomb problem and the particular case in Germany where a threat of torture was used to extract info from a kidnapper.

    Exceptional cases like this aren’t particularly useful in considering the practice of routinely torturing people who’ve been arrested on suspicion of criminal or terrorist activity.

  24. February 22nd, 2005 at 10:53 | #24

    For what it’s worth, we now know just precisely how to use torture effectively. That is, how to filter out the noise of false confessions and get meaningful signal.

    It does help that torture isn’t only usful for information but as part of a larger repertoire of state control.

    I have no intention of clarifying those remarks further just here, since it would make matters more widely known in the wrong way.

    The wrong way is to show how to do them, the right way is to show what’s going on or could go on, so you can avoid it.

  25. michael.burgess
    February 22nd, 2005 at 10:59 | #25

    John, they are useful in that they make explicit the rules of the game and make people consider the issues, rather than relying on as at the present individuals within the system to step into a large grey area and know when to act or not to act. Incidentally, police use psychological torture as a matter of course – eg if you don’t inform on your friends you will go to jail and end up being gang raped and possibly end up with Aids. Furthermore, I am not sure what you mean by exceptional cases – I would have thought that the current situation was exceptional in that Mutually Assured Destruction and other constraints on the use of WMDs no longer apply when religious extremists are willing to sacrifice their lives in the hope of receiving reward in the after life. Sometime in the next 10 years a WMD will be used in Sydney, or Paris or New York or some other city. The consequences for the future of our Multicultural societies will I think be frightening, not least in the violation of civil liberties that will result and the retribution which will be dealt to ethnic minorities. Consequently, while I do not trust the likes of Bush or Rumsfeld to set the rules by which security forces function, I do not think it is unreasonable demand that security forces be given additional powers to deal with the situation, albeit ones that are governed by very strict explicit rules of operation and overseen by independent organisations – although hopefully not ones stocked by individuals who think that Tony Blair et al are a bigger threat to human progress than Islamic fascists and other opponents of liberal democracy.

  26. Homer Paxton
    February 22nd, 2005 at 11:00 | #26

    Geoff,
    in my own clumsy ill edicated way I was trying to make the point that police used to believe some people were guilty of crimes. When DNA came along they found out they weren’t.

    In other words I prefer evidence to circumstances

  27. Jeremy
    February 22nd, 2005 at 11:00 | #27

    A point that is being missed is that to allow torture of a ‘terrorist’ applies as a justification after the fact, and as a result there is a very real risk that ‘innocents’ will be tortured. Let’s say that an Australian is found running around Afghanistan with the Taliban. We don’t actually know what they are doing there, but we assume they are involved in something fishy. Torture them a little and they confess to training as a terrorist. Ergo, torturing them was okay. The problems is that we don’t know that they are a terrorist until after we have tortured them. And all of this assumes that confessions made under torture are actually accurate and true. Let’s assume Habib was in Afghanistan at the relevant time and in the company of Taliban/al-Qaeda, but was only doing so for business reasons. We assume he is a terrorist and torture him and find out that this is the case (ie he was there for business). Torture is not justifiable in this instance. Assume he was training as a terrorist and we extract a confession, then it is being argued that torture is justifiable. Problem is that we cannot *know* in advance what the situation is.

  28. February 22nd, 2005 at 11:01 | #28

    Comment by Fyodor — 22/2/2005 @ 10:01 am makes a tendentious assumption:

    Habib’s illegal incarceration by a foreign government and (alleged) torture?

    ……
    Perhaps, given the dodgy human rights records of Egypt & Pakistan, the practice of outsourcing terrorist perps and suspects to foreign jurisdictions is unworthy. But I am not convinced that the incarceration & interrogation by foreign govts of Australian citizens suspected of engaging in terrorist acts of mass-murder, in multipe jurisdictions, is necessarily illegal.
    AUS citizens are forever being arrested, locked up, interrogated and then set free in foreign countries. Sometimes with, and sometimes without, the approval of the home country.
    AUS has, relative to the US state, a military alliance and a shared jurisprudential tradition. I cant see, setting aside the moot question of Habib’s torture, that it was a miscarriage of justice to hand Habib over to Gitmo.
    Remember that jihadist perps or suspects are potential combatants. It is fair to hold them for an extended period of time if authorities have a reasonable suspicion that they may be about to take up arms.
    If the suspects and perps are subsequently released without charge then lifes like that. Lots of people who are arrested & detained are not formally charged or convicted. Does that mean that the practice of arrest & detention without immediate charge is always illegal?
    We are fighting a Global War on Terrorism. So our Wets will do everything possible to deny the global scale, terrorist source and martial nature of this fight.
    PS: Speaking of unaswered questions: does Fyodor still buy Habib’s story about going to Pakistan for the non-militant purpose of setting up a cleaning business? And does Fyodor still think that Habib is a credible source given his deceits over welfare payments?
    The Wets – given their chronic pandering to Balkanising sectional interests, opposition to profiling of terror suspects, institutionalisation of immigration rorts, unconditional welfare disbursements to malcontents and general over-lawyering – have a lot to answer for in this war.

  29. observa
    February 22nd, 2005 at 11:47 | #29

    Naturally enough when you cuddle up to blokes like Habib and Hicks for years and accuse your govt of lies and all sorts of nasties, you are up manure creek when it becomes patently obvious that you’ve backed a loser. The answer of course for any lawyer worth his salt, is to immediately deflect the argument to high points of law. We see the same wriggle with those who have used deconstructionist arguments to nail their opponents and then want to semantically turn the debate to a literal interpretation (interview vs interrogate)when they can’t convince Joe Public their cause was just or honest.(Pop over to Gary Sauer Thompson’s at Public Opinion for my take on this)

    Habib’s circumstance is now a classic case of backing a loser for those that have and so now they move on to a higher moral plane, than we mere mortals. Yes they have a point about legal and moral principles generally, but in the final analysis we have to defer to the highest court in the land. The court of public opinion, which is the best jury we can ever have in an open democratic society. That is of course what Beazley has recognised, as he drags Labor away from the stupid fringes of society. He is of course a decent honest bloke, who will like us all, be prepared to be watchful that individuals are not oppressed by our very fluid legal system and high-handed use of power that could go with it.

  30. February 22nd, 2005 at 11:50 | #30

    This discussion reminded me of a short essay by Ariel Dorfman published on the 8th of May 2004 in the Guardian (and in The Australian too) entitled: Are There Times When We Have to Accept Torture? Good read here. The essay ends:

    Are we that scared? Are we so scared that we are willing to knowingly let others perpetrate, in the dark and in our name, acts of terror that will eternally corrode and corrupt us?

    I have met several people that were tortured under Pinochet’s regime and I would say: no, I am not that scared to justify what these people suffered. I wasn’t then and I am not now.

  31. Katz
    February 22nd, 2005 at 11:56 | #31

    A lot of nonsense is prated in defence of the Gitmo atrocity. A completely spurious argument has it that the victims of Gitmo somehow do not come under the protections of Article 4 of the Geneva Conventions because of their status of “illegal combatants” and/or because of their general islamicist naughtiness.

    There may be such a category as “illegal combatant”. And Article 5 of the Geneva Conventions provides the mechanism for such a determination:

    “Article 5

    “The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

    “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

    The world is still waiting for the convening of that competent tribunal… In the meantime, the United States Government is breaking international law, and by refusing to protest aboutthe treatment of Australian nationals under that illegal regime, the Australian Government are accomplices after, and worse, before the fact.

    Is it any wonder that Gitmo apologists who piously aver to its compliance with the Geneva Conventions never seem to have read beyond Article 4?

  32. Homer Paxton
    February 22nd, 2005 at 12:14 | #32

    Jack,

    He goes there to ‘buy’ a cleaning company.
    In Pakistan where corruption is rife you only make money, a lot of money, by who you know not what you know.
    Im think this is quite likely.
    Remember in Pakistan and close countries a cleaning business is a perfect front to launder money.
    It has a lot of cash flow and remember why you got this busienss in the first place.
    In other words you owe someone.

    You either turn a blindeye to this or do it because you believe in it.
    This is far more likely to be the story than Habib training to murder someone given his background.

  33. Dave
    February 22nd, 2005 at 12:15 | #33

    Comment by observa — 22/2/2005 @ 11:47 am

    “…but in the final analysis we have to defer to the highest court in the land. The court of public opinion…”

    Public opinion is no monolith. Each opinion – widely differing as they are – on this page is part of that ‘thing’ called public opinion. It’s a mistake to brush aside moral and legal arguments as views of those who backed a loser. Such arguments are simply part of the public opinion which you wish to defer to.

  34. Ros
    February 22nd, 2005 at 12:30 | #34

    Homer you are assuming that I agree with the Europeans that terrorism is a criminal offence. I don’t I believe it is an act of war. Also the fact of DNA doesn’t alter the fact that the innocent will go to gaol. To start with the judiciary and certainly juries struggle with probabilities. An infamous case where an English taxi driver was convicted for a, about a 1 in 400,00 probability, despite the fact that he had something like 12 independent witnesses who placed him elsewhere. It is not the police’s job to rule on guilt or innocence that is down to the courts for criminal matters. Currently in NSW Industrial courts management is presumed guilty and required to prove their innocence if a worker dies or is injured. Further double jeopardy doesn’t apply.

  35. Ros
    February 22nd, 2005 at 12:36 | #35

    Zyodor, the only way I can think to put this is to relate an ABC interviewer attacking with glee a scientist who had been invited to discuss the calesci ? virus and it’s early escape. In response to a question which required him to make the statement that of course there was a probability that it would escape, but a low one. She crowed you call that a small probability, it escaped.
    So will the value of the consequences of the act (torture) be such that it has value sufficient to make it right. It is clear that you consider that torture is wrong as an act whatever the value of its consequences so it makes no difference to you what may or may not be gained by the cruel and degrading treatment of Habib in G or his torture in Egypt .
    Rather you require me to agree that Habib was locked up for three years illegally, tortured and then released without being charged with any crime, and that whatever the value of using “inhuman and degrading treatment� or torture the act is wrong.
    It may be that for me as an individual I couldn’t do it. Just as I couldn’t shoot a child soldier or despite the fact that I am intellectually persuaded by Peter Singer’s argument for infanticide I couldn’t kill a baby. However I do not allow myself the luxury of requiring others to protect me, for example to kill others for my safety, including a child soldier, if you can’t bear the torture scenario, but not face up to the reality of what that entails. Dershowitz’s position is as I understand it that the ticking bomb is a real issue and that it is therefore necessary to legislate to ensure that a judge makes the decision and that it is a ticking bomb. Again to not face up to this as a reality is not acceptable to me. It is not unreasonable to ask whether you would OK with being the victim of a ticking bomb because we as a society failed to confront the problem and thus offered the best protection to all who play a part in it, the perpetrators and the victims and those who are charged with avoiding the ticking bomb. Would it be OK for a ASIO agent for example to refuse to torture but organise to get his/her family out, knowing that to advise the public was not an option.
    However as you insist that I tell what I don’t know, what heavy set men over fifty who spoke English in Pakistan (and later morphed into an Australian diplomat) or US interrogators found out and what value that information was and will be. I can’t. Maybe authorities will get sufficiently pissed off that they will let us know. Habib isn’t going to tell us, for a range of reasons.

  36. tim g
    February 22nd, 2005 at 12:54 | #36

    With regard to Prof Q’s argument about the efficacy of torture (leaving aside for the moment the moral dimension:)

    Can anyone name an example of a regime of whom it can be asserted that the systematic use of torture made a decisive contribution to its long-term security or viability?

    Bear in mind that there are many regimes of whom the opposite is true – the use of torture hastened their demise by helping to erode their moral legitimacy. Examples: Chile, Argentina, the apartheid regime in Sth Africa, East Germany to name just a few.

    A related question would be how the use of torture affects the peculiar mindset of radical Islam, with its elevation of suffering and martyrdom as rewards in themselves.

  37. Ian Gould
    February 22nd, 2005 at 12:55 | #37

    With regard to the “ticking bomb” argument: Michael Koubi, the chief investigator for Shin Bet was interviewed in the 20 November 2004 issue of New Scientist on this topic and others.

    Koubi, who has confronted thi problem in its most literal sense on numerous occasions, is emphatic that torture is neither necessary or effective.

    While some of Shin Bet’s techniques are coercive and have been criticised (e.g. the use of sensory deprivation and sleep deprivation) they stop well short of techniques used by the US post 9/11 such as waterboarding.

  38. February 22nd, 2005 at 13:42 | #38

    tim g — 22/2/2005 @ 12:54 pm treads dangerous utilitarian ground in his rhetorical query on torture’s efficacy as a security measure:

    Can anyone name an example of a regime of whom it can be asserted that the systematic use of torture made a decisive contribution to its long-term security or viability?

    ……….
    Rome.

  39. Fyodor
    February 22nd, 2005 at 14:11 | #39

    Jack & Observa,

    The US Supreme Court ruled last year in Rasul vs. Bush that incarceration at GTMO without access to the US judicial system was illegal. Katz’s comments regarding the Geneva Convention are also spot on. The whole charade is illegal under US and international law, let alone the implications for our government’s complicity in the abuse of our citizens.

    It’s the last point that I find remarkable about the RWDBs’ defence of Habib and Hicks’ detention: this should be a clear-cut issue of national sovereignty and protection of Australian citizens. Why the f@ck are we allowing foreigners to abuse our citizens in such a flagrantly illegal manner? Imagine the outcry if Indonesia tried this crap.

    “Remember that jihadist perps or suspects are potential combatants. It is fair to hold them for an extended period of time if authorities have a reasonable suspicion that they may be about to take up arms.”

    No, Jack, it’s not fair. It’s patently unjust to hold someone convicted of no crime in indefinite detention simply because you think they might become a combatant.

    “If the suspects and perps are subsequently released without charge then lifes like that. Lots of people who are arrested & detained are not formally charged or convicted. Does that mean that the practice of arrest & detention without immediate charge is always illegal?”

    For three years, with no legal redress? That’s a ridiculous argument, even for you.

    “PS: Speaking of unaswered questions: does Fyodor still buy Habib’s story about going to Pakistan for the non-militant purpose of setting up a cleaning business? And does Fyodor still think that Habib is a credible source given his deceits over welfare payments?”

    The questions were not answered because they were not put to me. Seeing as you’ve just asked them, my answers are: a) no, I have no idea what he was doing in Pakistan; b) I don’t consider him utterly credible because he has not been forthcoming with his whole story. The “deceits” over his welfare payments are a beat-up, and irrelevant to the GTMO issue.

    Habib could be incapable of telling the truth and it wouldn’t matter a jot. We don’t even have to hear Habib’s story to know his rights have been violated and that a miscarriage of justice has taken place.

  40. observa
    February 22nd, 2005 at 14:22 | #40

    “Public opinion is no monolith. Each opinion – widely differing as they are – on this page is part of that ‘thing’ called public opinion. It’s a mistake to brush aside moral and legal arguments as views of those who backed a loser”

    Well that’s true Dave, but sometimes you can question the marbles and by inference the weight of the arguments of those that lack considerable foresight, (due to blind prejudice?) in these matters. You can fool some of the people some of the time, even if it’s only yourself. Perhaps an example to elucidate here.

    If I as a business type, had stood up and defended Rodney Adler in public against ‘nasty’ innuendoes, lies and attacks by bodies like the ACCC, in spite of much opinion to the contrary, where would I be now? I could have trotted out all the right moral indignations like ‘innocent until proven guilty’, victimisation, etc, ever since the demise of HIH, until such time as it was patently obvious that he was. If I then turned around and said yes but!!!…. Although he’s a lousy businessman, he’s still a good financial adviser and deserves to be treated as such, I might have to accept that many would be rolling about the floor with laughter, irrespective of whether they were anti-business types or not.

    So it is with Habib. A typical example was our learned Prof of Psych, Tennant, who professed to be an expert on Habib’s condition. Now I must confess on watching the interview with him on TV, that he appeared very eager to back up Habib’s torture claims, on what I would consider some fairly tendentious grounds. You have to bear in mind here, that the Observa has witnessed diametrically opposed medical opinions about a ‘mediterranean back’ in a Workcover claim, depending upon which party, employer or union, hired the expert quack. And that was a medical condition. Now did Tennant qualify his very enthusiastic diagnosis with phrases like ‘symptoms could be consistent with exposure to torture’? Not on your nellie, he didn’t and the observa was somewhat skeptical of our learned shrink. Next day I discover that same learned prof has been sacked by Habib and Hopper, for a gross and inexplicable breach of patient confidentiality. Yes but!!!…. He’s still a good diagnostic shrink cry the usual suspects and in any case we’ve got Habib’s word for it and he’ll explain where a disability pensioner got the money to travel and do international business deals and George Bush is a liar and……

    AND Hitler, Stalin, Saddam, Uday, Qsay, Pol Pot, Kim Jongil, Mugabe, Castro, Guevera, Osama, Zarquawi, Hicks, etc, etc have never been tried and found guilty in a court of law to this day and so……

    And you wonder why the Beazer is sending out for a change of pants for Labor?

  41. Fyodor
    February 22nd, 2005 at 14:24 | #41

    Ros,

    You said yourself that “… torture becomes not an evil but an act that is right or wrong in virtue of the value of it’s consequences.”

    Since you didn’t deny that Habib was tortured, I put the hypothetical to you: what good came of it that outweighed the damage done to him?

    Your response is pitiful: whoever interrogated him extracted useful information. Or not. You don’t know. It doesn’t really matter to you, does it? The bottom-line is that you trust the government only to torture the bad guys and never make mistakes. JQ was right: you are a waste of time.

  42. Ros
    February 22nd, 2005 at 14:37 | #42

    No need to get nasty Fyodor. I attempted to address your question as to whether any good came of the question of Habib and torture. I am a bit offended that you demanded repeatedly that I respond so that you could call me names. I will not make the mistake of responding to a request from you again. If JQ wants to call me a waste of space allow him to do so himself perhaps, or are you privy to private correspondence with JQ. Whatever.

  43. Fyodor
    February 22nd, 2005 at 14:51 | #43

    Ros,

    I apologise for being nasty, though I didn’t call you names.

    BTW, JQ had no input into my comment – I was referring to his earlier statement that “I don’t think I can usefully engage in debate with someone who supports torture.”

    I should have agreed with him rather than waste my time. I didn’t say you were a “waste of space”.

  44. Ros
    February 22nd, 2005 at 15:03 | #44

    Fyodor declares that the The US Supreme Court ruled last year in Rasul vs. Bush that incarceration at GTMO without access to the US judicial system was illegal.
    The Supreme Court did not say that rather that the US Federal courts “have jurisdiction to consider challenges to the legality of the detentions of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay”.
    However on 19 January 2005, a US District Judge for the District of Columbia handed down a decision
    “Judge Leon agreed that there was “no viable legal theory” by which he could issue writs of habeas corpus to these detainees held in these circumstances.”

  45. Andrew Reynolds
    February 22nd, 2005 at 15:24 | #45

    John,
    If you cannot usefully engage in debate with someone who supports torture then this thread would be remarkably one-sided. The debate has to be possible because without debate it is not possible to prove them wrong, a task I would regard as important to the survival of liberal democracy.
    There are always people who are going to try to justify this sort of abuse to seek the easy, short-term, answer to problems, whether terrorism, paedophilia or some other morally repugnant crime. It is the same reflex that leads to vigilantism.
    Ultimately, the only way to stop these sorts of activities is the old, tried and true two-pronged strategy – remove the reasons for the criminal activity to reduce or stop new perpetrators coming along and strong and humane enforcement of the law against the existing perpetrators.
    If the enforcement of the existing laws is, however, inhumane and capricious, in their mind at least, this justifies their criminal actions to the existing perpetrators and provides sympathy for them among the general population – reducing or removing the effectiveness of the long-term strategy and re-inducing the cycle of violence.
    To me at least, this argument has to be made again and again because the human tendency is always to seek the easy answer without thought for the long-term consequences.

  46. February 22nd, 2005 at 16:05 | #46

    Fyodor, Ros, Observa, Pr Q et al
    Enought. This argument has gone round and round in circles going nowhere owing to a disingenuousness on certain parties.
    It is getting bogged down in idiotic technicalities and ideologic hair-splitting. Time for some socio-political realism. I quote, from memory, Dr Knopfelmacher who, apropos a similar dispute, remarked:

    There is such a thing as a philosophically valid proposition which can generate a sociologically absurd proposal.

    In this context it implies martial realism rather than judicial idealism. We are at war with Terrorists and we are in miliatary alliance with the US. This would not seem to be a terribly difficult proposition but our Wets seem to be inexhaustively creative in their ways of avoiding its implications.
    Sociological realism is also indicated. The text of this dispute is the traditional state power v citizen rights (Blah X 3). No one in the Coalition of the Willling is talking about reinstituting the Spanish Inquisition, Fyodor’s overheated speculations notwithstanding.
    The sub-text of the furor over Habib, the 800 lb gorilla which squats in the comments thread, is whether or not Euro societies can integrate Muslims in large numbers without major security concerns. This is not a socio-biological axiom. Just look at the current debate in the USE over whether to let in dear old semi-secular, semii-liberal Turkey. And look at the other debate simmering about Islamic urban enclaves that have sprung up in major Euro cities and do not exactly appear to be melting into the pot.
    This “ethnic question” is a major reason behind the rise of “Far Right” parties in Europe. But our Euro elites have made things worse, not better, with their well-intentioned but wrong-headed approach to settlement & citizenship. So their action has brough a reaction. Amazing.
    My personal opinion is that Islamic immigration and integration is possible providing the idiotic reign of over-lawyering, ethnic-pandering, multi-culturalising political rackets is brought to an ignominious end. Thankfully, going by Beazley’s tough-minded comments, this moment seems to be at hand. The unapologetic stance of the govt. has probably helped.
    In the case of Habib we have an almost text book example of how the Wet program has brought itself undone. This fellow, evidently no rocket scientist, was allowed into the country & granted citizenship on the grounds that he would be a good citizen. He took a foreign-born wife who he drags around in antideluvian mufti, preached sectarian extremism, went on welfare and then rorted it, spent time harassing persons at military installations and then wound up in Central Asia hanging out with jihadists plotting to massacre thousands of civilians.
    What a triumph of Wet social engineering!
    Now apparently he had been put through the military judical ringer and he is not a happy camper. Well I am sorry if he got worked over by his native interrogators. I hope this practice is discontinued. It reflects badly on us and does no good.
    But I am not sorry that he has been languishing in Gitmo at the Ministers, or Secretaries, pleasure. It might have given him the opportunity to rue his ways.
    Perhaps our Wets will follow his example and do some way-rueing themeselves. It was at the pleasure of a more soggy immigration Minister that this unsuitable person, with a volatile temper and an intense devotion to radical Islam, was let into the country in the first place. He should not have been given citizenship with this appalllingly uncivil attitude.
    At least the security agencies should have placed him under greater surveillance and constraint. Alas, like the 911 attackers, he was given a free pass by our Wet administrators.
    The general public hear this sort of thing and roll their eyes because they are sick of the farce. This is the reason for its relative indifference to the occasional judicial irregularities, malpractices and misadventures of the Bush/Howard axis. And this applies to persons like Hicks, or Jihad Jack, who appear to go troppo from the other direction, so to speak.
    But none of our dearly beloved Wets are prepared to face these unpleasant facts. This is because their own institutional complicity in the source of this mess would become apparent and the very shaky house of cards that their ideology is based on would come tumbling down.

  47. tim g
    February 22nd, 2005 at 16:09 | #47

    Jack S, in answer to my question about regimes that have enhanced their security through the use of torture, suggested Rome.

    I hadn’t realised that things had gotten so bad under Berlusconi.

    On a more serious note, I was thinking more in contemporary terms, where the modern awareness of universal human rights means that torture is more commonly seen as aberrant, rather than just part of standard law enforcement practice as it was under Caligula and co.

    Also, I think the “ticking bomb” scenario is an interesting debate but not especially realistic, especially as it pertains to jihadists. Imagine if, in spite of themselves, American intelligence had managed to apprehend one of the 9/11 hijackers on September 10, and had resorted to some form of torture as they interrogated him. Remember that these guys could be heard shrieking in ecstasy as the planes struck the twin towers. What form of torture do you imagine could have broken through that kind of fanatical mindset? It seems just as likely to me that, to a culture that celebrates death and suffering as honourable rites of passage, being tortured by the enemy serves to reinforce the belief system (and hence the resistance) rather than break it down.

  48. michael.burgess
    February 22nd, 2005 at 16:10 | #48

    Andrew, while I certainly agree with your point on people taking the easy way out, and I am certainly concerned where the slippery slope will end re torture, many critics of Bush et al are also taking the easy way out by a) viewing Islamic fascism as if it was a typical law and order issue b) massively underestimating the degree to which fascist tendencies are present in the Muslim world, c) being more concerned about the likes of Hicks and Habib than you are about the victims of Islamic aggression (including very very large numbers of women in Muslim communities in the west and our liberal equivalents in the non-western world who most liberals don’t appear to give a flying f…. about), C) greatly underestimate the threat posed by WMDs, especially, at the present time, Nuclear weapons. Oh and talking about taking the easy way out what the heck do you think Europeans are up to in trying desperately not to offend Islamic extremists by not support intervention in Iraq, pulling out of Iraq (the Spanish), blaming Israel for just about ever problem in the world (a large number of people across a broad left to right spectrum), and by repeatedly backing down in the face of their demands and not taking action against extremists (those who preach violence in Mosques in the west, and so called moderate Islamic organisations who support (the vast majority of them) terrorism. Personally I despise the fact that I end up taking Howard et al sides in arguments such as those over Iraq but given a choice between these reactionaries and the neo-Neville Chamberlain’s of the world I will take the lesser of the two evils.

  49. Andrew Reynolds
    February 22nd, 2005 at 16:17 | #49

    Jack,
    I happen to largely agree with your sentiments on immigration – if not the way you put it. However, this is not about immigration. To me, this thread is about what we are willing to accept in terms of Government power. If we are willing to accept that an individual, a citizen (whether we believe they should be or not), can be held against their will without proper (or any) judicial oversight by any government without our government raising a protest then we are tacitly accepting that our government can hold any citizen of this country without proper judicial oversight. If we accept that then we are no better than those we seek to defeat.
    If we accept this because a person is a Muslim, then next we might accept it because they are a Jew and then because they are gay and then because they are retarded…

  50. Fyodor
    February 22nd, 2005 at 16:19 | #50

    Ros,

    What did you think “legality of the detentions” concerns? The supreme court affirmed that the detainees in GTMO had the right to due process – which had been denied to them – which they are now pursuing.

    You conveniently ignored Judge Green’s ruling from the same circuit, 14 days after Judge Leon’s (they were handling different cases on the same issue). Note also that Judge Leon was a G.W. Bush appointee from 2002.

  51. Katz
    February 22nd, 2005 at 16:34 | #51

    Ah, what nostalgia. Reruns of “Dad’s Army”.

    Corporal Jones Quote I

    “A taste of the cold steel … the Mahdi … they didn’t like it up ‘em sir. They didn’t like it up ‘em”

    Corporal Jones Quote II

    Don’t panic! Don’t panic!! Don’t panic!!!

    Just heard on the radio Howard breaking yet another non-core promise. Seems Our Boys are off to combat in the “New Iraq”.

    No, this isn’t Vietnam. In that country Australia fought against insurgents who spearheaded the military effort to create a middle-sized single-party communist power.

    In Iraq, on the other hand, Australia is fighting against insurgents who are fighting to prevent the creation of a major single-party Islamist power.

  52. Ian Gould
    February 22nd, 2005 at 16:40 | #52

    Iraq is nothing like Vietnam.

    George Bush went to Iraq.

  53. February 22nd, 2005 at 16:50 | #53

    Although the US Federal Court has affirmed the right of Gitmo detainees to civil legal trial the courts have not seen fit to revoke the legitimate power of the state to detain GWOT prisoners at Gitmo.

  54. Andrew Reynolds
    February 22nd, 2005 at 16:54 | #54

    Michael,
    I agree with much of what you are saying. I support the action in Iraq – it was not handled the best, but it was, and is, the only real solution to the problem. Oppression of anyone on spurious grounds, whether for reasons of race, sex, sexual orientation, religion or thousands of other reasons is wrong.
    However, we do not prove to those undertaking this opression that it is wrong by embarking on it ourselves – even if it is in the name of self defence. As I have said before, I lost a friend and (former) colleague in the September 11 attacks. He was a good man. I also have two daughters who I want to see grow up. I would rather they grew up in a word with a fear of the occasional act of senseless violence than in the constant fear of a government that can act without fear of judicial or other oversight.

  55. gordon
    February 22nd, 2005 at 17:19 | #55

    As I’ve said several times before, I remain far more worried about the US Govt., and now about our own Govt., than about any terrorist group. Their capacity to hurt us is far, far greater.

  56. Geoff Robinson
    February 22nd, 2005 at 17:30 | #56

    It is difficult to know where to begin with most of this self-indulgent tough talk. But I want to focus on one point: all sorts of radically illiberal measures, such as torture, indefinite detention and murder are being justified on the grounds that they will preserve lives (only of our sort of people). I don’t think that the lives of our sort of people will be preserved by these policies (even Richard Posner has noted the importance of maintaining the loyalty of Arab-Americans for example). But even if they did preservation of human life is not the absolute basis of policy. The preservation of British lives would have been best served by not declaring war in 1939. A policy of continental isolation, as favoured by the Republican right in the late 1940s, would have saved many American lives. Melvyn Leffler in A preponderance of power argues that American policy-makers rejected isolationism because it would have required such a degree of internal mobilisation that it would have placed American liberalism at risk. More recently if we accept the arguments of the Bush administration it has brought liberty to foreigners at the cost of many American lives. There was some truth to the slogan better dead than red, life is not an absolute value. The contest with radical Islamism should not just be one to preserve lives but in defence of liberal values. Freedom is worth risks. Richard Rorty’s comments are insightful here: http://www.theage.com.au/articles/2004/04/26/1082831494716.html.

  57. February 22nd, 2005 at 18:32 | #57

    First, torture is evil.

    I can’t see how you can make that statement as a matter of fact. What specifically is “evil” about torture in the “ticking time bomb” case? Let me guarantee everyone here that if any of you kidnapped a friend or member my family then I wouldn’t think twice about torturing any of you bastards if I thought it would help to get them back.

    Second, whether or not Habib was guilty as insinuated (he’s never been charged), if you approve of torture you approve of torturing innocents because this will inevitably happen. In fact, it already has.

    If you approve of prisons, then you approve of imprisoning innocents because this will inevitably happen.

    Regardless of whether or not someone is proved innocent after the fact, they can never get back the time they lost in prison.

  58. observa
    February 22nd, 2005 at 18:55 | #58

    Jack nails the reasons for Beazley’s recent sea-change for Labor. Essentially we can have any laws we choose from Sharia to don’t be a naughty boy and have a slap on the wrist. Also the way in which the law is implemented, can always be a recipe for tyranny. What checks this is a general sense of community standards and fairness, which in open liberal democracies, is the best judge and jury you can get. Authorities acting behind closed doors from time to time, naturally have to be mindful of this in all their deliberations and actions. Sooner or later they will find the light of day and consequences met for contravening community standards.

    With all this worrying over the state vs the individual expressed here, I can only say look at the specifics. If the specific cases of Hicks and Habib are your most worrying outliers in this regard, you need to take an aspirin and lie down, is what your community and political leaders are saying. These individuals are not being systematically persecuted for their race, religion or sexual proclivities, but rather were detained for being dangerous nutters. OTOH, if a benign individual like Ms Rau falls through the cracks of our system, we view the healthy indignation of the community toward authority, to shake their butts, to ensure such occurrences are negligible in future. And this despite the fact that in two WWs, Ms Rau’s treatment, as a person of German extraction, would have been quite lawful at the time, probably irrespective of her mental condition. At present in the WOT, the community doesn’t view all muslims as automatically guilty, but then unlike some, it doesn’t believe that they’re all automatically innocent either. In this regard they’re prepared to trust their appointed leaders until there is evidence to the contrary. Experience tells them they predominantly can. Naturally enough, they always have one ear cocked for any real evidence that they can’t.

  59. Ros
    February 22nd, 2005 at 18:59 | #59

    Whether they meant to or not the British by declaring war certainly saved a lot of British Jewish lives surely. how would the Japanese have treated Australians if the Yanks hadn’t stopped them. Certainly they may have understood life is not an absolute value, I don’t.
    Life is not an absolute value, I don’t even know what that means Geoff. In an argument about whether torture is right or wrong I struggle with the notion that it is better to be dead than red. My personal preference given the choice would be to be tortured. I have given birth so I have some experience of awful inescapable pain. Like I was never keen on it is better to be dead than raped.
    Andrew while your comment re fear of dying because of terrorism legitimately suggests that the probability of being hurt by terrorists is exaggerated, also the possibility that Habib demonstrates the dangers of an authoritarian state are also exaggerated.
    This is weird, to put the argument that a consequentialist moral position on torture may well justify it at least in certain circumstances invites abuse and dismissal. But it is dismissed by many on the grounds that the common good is better served by the death of some Australians rather than pain to others, surely a consequentialist argument? Or Gordon who appears to believe that one should fear our government more than terrorists because, they will torture more people than the terrorists wish to kill? sorry gordon I don’t know what you have said before.

  60. Andrew Reynolds
    February 22nd, 2005 at 20:20 | #60

    observa,
    To me at least the problem is not in detaining dangerous nutters, as you put it. Society at large has a self-evident right to self-protection. The problem is in determining who those dangerous nutters are and for how long they remain dangerous. Are you seriously maintaining that the executive arm of government has the right (nay, the duty!) to lock up anyone it likes on the pretext that they say that they are dangerous nutters? If not, what limits should be placed on that?
    To me it appears you are setting few limits. Public opinion (or in other words a general sense of community standards) can only be influenced by what comes out and that can be managed by spin. The ‘sooner or later it will come out’ argument just does not wash – it may come out after all the participants are dead.
    In any case, it was not that long ago that the general sense of community standards was that it was right to persecute Jews, homosexual, people of differing skin colour etc. That does not mean that it was right to do so.

    My challenge to you is to state where you see the limits (if any) on the rights of the executive arm of the government to detain a person that it sees as a dangerous nutter.

  61. Fyodor
    February 22nd, 2005 at 20:36 | #61

    “Although the US Federal Court has affirmed the right of Gitmo detainees to civil legal trial the courts have not seen fit to revoke the legitimate power of the state to detain GWOT prisoners at Gitmo.”

    There are several writs of habeas corpus currently before US courts as result of the Supreme Court decision challenging precisely the legality of the detention of foreigners at GTMO. The Supreme Court has already ruled that the GTMO detainees can access the US judicial system.

    BTW, there is nothing legitimate about the detention of prisoners at GTMO. The US government chose the location because of the legal fiction that it is not US sovereign territory (technically it’s part of Cuba), and therefore not subject to US law. The US Supreme Court ruled that that subterfuge is the bullshit it appears to be.

  62. February 22nd, 2005 at 20:46 | #62

    What is good enough for non-Australians (and that includes Habib in the PM’s eyes) is not necessarily the same as what’s acceptable for Australians. No one’s forgotten the PM’s comment about the death sentence for the Bali bombers. To paraphrase him…. “we don’t believe in hanging offenders in Australia, but we won’t oppose Indonesia hanging the Bali bombers”. WTF?! Some principled stand he is taking.

  63. Ian Gould
    February 22nd, 2005 at 20:49 | #63

    < >

    The Japanese invasion of Australia was prevented by the victories of the Australian army at Milne Bay and Kokoda. The only American troops involved were a detachment of American combat engineers who were building an airstrip at Milne Bay.

  64. Andrew Reynolds
    February 22nd, 2005 at 21:34 | #64

    Ian,
    You forget why the Japanese found it necessary to go over the Owen Stanleys in the first place – their tactical defeat in the Coral Sea, against a mainly US force.
    In addition, can you imagine what would have happened if the full wieght of the Japanese Imperial Army was trying to cross the Owen Stanleys? I somehow doubt that the battalion of reservists, for all their great abilities, could have stopped them. We can thank the US (and China) for tying them up so they were not doing so.

  65. tim g
    February 22nd, 2005 at 21:49 | #65

    Let me guarantee everyone here that if any of you kidnapped a friend or member my family then I wouldn’t think twice about torturing any of you bastards if I thought it would help to get them back.

    Yobbo – back off. I’ve never even met any of your family.

    But seriously, the key phrase in your argument is the last one; that’s a mighty big ‘if’. What if it doesn’t help get them back? What if your loved ones are killed by people who are retaliating at the torture of one of their brethren? Would you still think it was the right strategy, and why is this a less likely outcome than the one you envisage?

    I note with interest that those here who would defend the use of torture in certain circumstances are relying on a nice, linear equation: torture = valid confession = lives saved. I wish I lived in their neat, predictable world. In the world I live in and observe, so-called liberal states that go down the path of legitimised torture are unleashing forces that no one can predict.

    And, as I’ve suggested previously, bear in mind that the people you are torturing are products of a culture that celebrates death. They’ve basically been brainwashed by a cult; de-programming would be a much more effective strategy than physical torture.

  66. February 22nd, 2005 at 23:53 | #66

    But seriously, the key phrase in your argument is the last one; that’s a mighty big ‘if’. What if it doesn’t help get them back? What if your loved ones are killed by people who are retaliating at the torture of one of their brethren? Would you still think it was the right strategy, and why is this a less likely outcome than the one you envisage?

    You’re right, of course. I wouldn’t proceed with the torture if I thought it would increase the chances of my loved one being killed.

    If I judged it to be neutral, however, I’d go right ahead and torture you – because fuck you, you started it.

  67. February 22nd, 2005 at 23:56 | #67

    But seriously, the key phrase in your argument is the last one; that’s a mighty big ‘if’. What if it doesn’t help get them back? What if your loved ones are killed by people who are retaliating at the torture of one of their brethren? Would you still think it was the right strategy, and why is this a less likely outcome than the one you envisage?

    You’re right, of course. I wouldn’t proceed with the torture if I thought it would increase the chances of my loved one being killed.

    If I judged it to be neutral, however, I’d go right ahead and torture you – because fuck you, you started it.

  68. observa
    February 23rd, 2005 at 02:25 | #68

    “My challenge to you is to state where you see the limits (if any) on the rights of the executive arm of the government to detain a person that it sees as a dangerous nutter.”

    That’s the delicious irony Andrew, I don’t know and neither do you, but we all do, at least within jurisdictional limits. Look around you Andrew. Habib was in Gitmo for 3yrs. Hicks is still there with many others. Carr enacts retrospective law to keep the Skafs from getting a shorter sentence. Rann intervenes in Von Einem’s parole chances coming up by saying he’ll never be released on his watch and harangues the DPP to get Nemer 2yrs in jail instead of $200 fine, Cornelia Rau did time in Baxter and is now in Glenside, and you can get executed for trafficking drugs in Singapore and Bali, or stoned for adultery in Africa. Here we’re arguing about the ethics of torture. Whaddya reckon Andrew?

  69. February 23rd, 2005 at 02:46 | #69

    Comment # 61 by Fyodor — 22/2/2005 @ 8:36 pm fancies himself as an eminent jurist:

    There are several writs of habeas corpus currently before US courts as result of the Supreme Court decision challenging precisely the legality of the detention of foreigners at GTMO. …there is nothing legitimate about the detention of prisoners at GTMO

    Did someone die and make Fyodor Chief Justice? In which case we may as well hand the terrorists the keys of NYC and all go home.
    In reality the US Supreme Court has done nothing of the sort. GTMO remains a legitmate detention centre and a useful clearing house for sorting through the catch in the GWOT.
    The GWOT requires both a global martial and a local judicial approach. Fyodor would have us fight with one hand tied behind our backs.

  70. February 23rd, 2005 at 03:13 | #70

    This thread is spluttering and dying so I might as well snuff it out by way of a summing up. It is clear, from the incendiary nature of some exchanges, that the whole subject of torture and the GWOT has opened up a can of worms. Much of the wriggling is due to the fact that the adjudication of the Habib case has tapped a deep, not-very-well-examined, vein of unrequited anger.
    On the Hawk/Dry side, the anger provoked by the 911/Bali atrocities, at both terrorist perps and their appeasers & sympathisers, is still pretty close to the surface. There is also some long festering disgust with various forms of Cultural Wetness. And to top it off, there is embarassment and shame that some dreadful aspects of the chickenhawks practices and excesses, carried out in the name of the GWOT, have come home to roost.
    On the Wet/Dove side, there is plenty of (justified) anger at the Hawks for driving the Anglophone powers into the colossally expensive and bloody blunder that is Iraq-attack. There is also anger at the moral insult that torture allegations have added to the Anglos political injury. And there is probably an uneasy conscience that the practice of “ritualistic libertarianism” has mislaid so many well-intentioned plans.
    What really annoys the Dove/Wets is the fact that the majority of their fellow citizens (beloved democracy!) appear to agree with, or at least tolerate, the Hawk/Dries political militarism and cultural conservatism. Not only have the Hawk//Dries got away with it, they have, for the moment, come out on top.

  71. Ros
    February 23rd, 2005 at 07:11 | #71

    Stating that the government is telling the truth is a bit difficult when its hard to get a handle on what are the lies that we should be denying. There is the fact that they practise sleight of hand which seems to be a part of politics and those who comment on it. There is the usual liar liar liar context. Or the “The Australian government knew about and approved Habib’s treatment”. Presumably the lie is that are saying they didn’t know and they didn’t approve, which they couldn’t of course if they didn’t know.
    So did they know that he got knocked around in Pakistan. Well I would imagine that they could guess that might happen. Did they know that he was in Egypt. They warn Australians travelling that a country may not permit Australian consular assistance to be given to Australian citizens who, according to its laws, it considers and treats as its own nationals. It would seem that Egypt was of this view in relation to Habib so I see no reason to disbelieve the government when they say that Egypt would not tell them whether they had him, which certainly limits the ability to provide consular support. And it was clear that the Egyptians didn’t consider that he was entitled to access Australian consular support. Under international law I read countries are not obliged to accept dual nationality. Further as a canadian site points out Whenever you are in a country that recognizes you as a citizen, its laws take priority over the laws of any other country of which you may be a citizen. Does anyone know how Habib’s Egyptian nationality was recognised. Was it because the Pakistanis knew quite a bit about this innocent abroad or did he claim it? his lawyer tried to argue that he had abandodned his Egyptian citizenship, because he had visas for entry into Egypt but this is not an uncommon way of travel for dual nationals.
    So did they know he was in Egypt? I don’t think so. Did they suspect it, possibly. Again they are known for beating people up, so did the Australian government approve of this. Moot point really Don’t beat up this person that you say you haven’t got but even if you did you consider that he is your citizen and Australian laws and support don’t apply.
    G Bay, did they know he was suffering cruel etc, well as the international moving feast on this extends to not being allowed to offer reward inducements or treats to talk, let alone being nasty one could argue that in the strictest sense they would suspect it. They asked and were told no. Leaves us with the Australian government would have to be of the view that the Yanks were liars as a matter of course thus the only solution was to demand his return. Well they never lied about that. they weren’t interested in that outcome for quite some time.
    Now of course we have got him back and considerable resources of our intelligence will have to be expended watching the nasty little sod.
    And now of course he is a hardened terrorist, presumably because people have been mean to him rather than he has been training to kill.
    So I am prepared to put my name to it, the Australian government did not know about Habib’s treatment and therefore they couldn’t approve of it. I would acknowledge that as concerns for Australian citizens go they have probably been more worried about the Australian citizen who as I read spends his days chained in a squatting position to a post in a Thai gaol until he is executed. So they prioritised differently to what some would like. Don’t have a problem with that myself.

  72. Fyodor
    February 23rd, 2005 at 07:42 | #72

    Jack,

    You obviously need to do some homework on the legal issues surrounding GTMO. As an illiberal statist, I’m not surprised you’ve chosen to remain ignorant [see no evil etc.], but do make an effort for the sake of the debate.

    This may have been hard for you, arguing with yourself at 3am, but did you have a point in that last post? A summary usually discusses the issue at hand, e.g. Habib and torture.

  73. Don Wigan
    February 23rd, 2005 at 09:43 | #73

    It’s disappointing that a lot of discussion can’t move beyond the normal dividing lines.

    I’m as bad in my own way, not necessarily conceding that Habib was up to no good in Pakistan. But, as JQ suggests, we ought to suspend some positions for the purpose of considering the merits or otherwise of torture.

    The best argument I’ve seen against torture being justifiable was by Christopher Hitchens, a supporter of the invasion (well, war or liberation if you prefer).

    He pointed out that despite its extensive use in Northern Ireland, the only effective intelligence came from constant sifting of the facts and the spotting of inconsistencies. It is time-consuming and labour-intensive unfortunately.

    He reinforced that position by showing that in WWII the value of SS Intelligence declined as torture replaced the more tedious methods. In the end, being captured by the SS was a likely-fatal and terrifying experience, but it still didn’t help the Nazis.

    Despite its extensive use in the Afrikaner era, it is questionable how helpful it was. It didn’t break Mandela or Sachs, but as the Truth Commission has revealed, it demeaned many of the torturers.

    Some have mentioned regimes in Central and South America. There, it seems to have been used as a weapon of terror more than one of gathering information.

    The evidence suggests that it ought to be opposed on humanitarian and rational grounds.

  74. February 23rd, 2005 at 10:09 | #74

    Fyodor comment # 72 23/2/2005 @ 7:42 am drones on in his new found role as eminent international jurist:

    You…illiberal statist…obviously need to do some homework on the legal issues surrounding GTMO.

    .
    Enough with the over-lawyering already! Fyodor obviously needs to do some homework on the sociological facts surrounding GTMO. He, & his fellow Wets, confirm “Karl Marx’s famous quip…that it is the mark of fools to analyse social and political systems [solely] on the basis of their formal constitutions.”
    As Henderson observes, the Fyodor-types “just don’t get it”. The US is at war and GTMO is under martial law. The majority of the US people are happy with this legal arrangement, going by the recent results of elections.
    With friends like Fyodor, liberalism does not need enemies. The forequote is courtesy of Dr Knopfelmacher, used in a similar context when demolishing the bogus liberal pretentions of Fyodor-types. One hopes, pace Popper & Hook, that liberalism will be spared from the perverse fetishes of “ritualistic libertarians”.

    A summary usually discusses the issue at hand, e.g. Habib and torture.

    ….
    Fyodor’s comprehension slips are showing. The “issues at hand” have been done to death. I was, as explicitly indicated in the last couple of comments, summarising tacit & meta aspects of the debate rather than raking over the, mostly boring & irrelevant, legalistic minutiae which was causing the debate to “splutter and die out”.
    The meta “gorilla squatting in the living room” aspect is the failure of most commenters to consider the realistic sociological implications of implementing abstract ideological principles (“mark of fools” and all that). The tacit
    “unspoken motive” aspect of the debate is the unwillingness of commenters to acknowedge their underlying personal agendas eg “anger” about 911,
    shame over Abu Gharib, “disgust” with terror-symp Wets, “uneasy conscience” about policy failures of the “multicultural” political racket. This last is especially germane to Habib’s case.
    Fyodor immediately presents with textbook symptoms that are diagnostic of both aspects of this debate’s disorder. The man is a clinical psychologists dream and a satirists nightmare. Beyond parody.

  75. observa
    February 23rd, 2005 at 10:27 | #75

    I probably agree with Don’s assessment here although it doesn’t get you off the hook as to what will define torture for the interrogator. eg sleep deprivation, disorientation, truth drugs, or degrees of cultural humiliation. I guess from a practical point of view it would be best to ask the Israelis. After all they would be closest to the threat of terror and yet most mindful of the moral dilemma.

  76. Fyodor
    February 23rd, 2005 at 10:44 | #76

    Jack,

    It’s a simple issue: if you’re going to summarise, discuss the issue at hand, don’t introduce OT irrelevancies. It’s obvious yet again that you’d prefer to derail the existing discussion on to your own pet theories rather than debate the actual issues of this thread.

    Your persistent bleating of the “we’re at war, dammit!” argument is tiresome and irrelevant. Unless you’re prepared to set a limit to state action in all circumstances, including wartime, you might as well out yourself as a fascist and move on. You say you’re a liberal: how about supporting the rule of law and the rights of individuals?

    The illegal incarceration of foreigners on GTMO is a disturbing precedent in US political life, and one that the republic will regret.

  77. Don Wigan
    February 23rd, 2005 at 10:53 | #77

    Not bad, Observa. Jeez, me agreeing broadly with you, too? Next thing you’ll be sympathising with the Crows and I’ll be be feeling for the Power. Byron got a bit of a rough spin by the way.

  78. February 23rd, 2005 at 12:09 | #78

    Fyodor — 23/2/2005 @ 10:44 am will have us miss the bigger political picture in order to satisfy his irresistable urge to over-lawyer & ethnic pander:

    It’s a simple issue: if you’re going to summarise, discuss the issue at hand, don’t introduce OT irrelevancies [sic]

    …………………….
    The terrorist chickens are flying home to roost in their droves but Fyodor wants us to pore over the legal fine print. The iniquities and ineptness of Wet liberalism are all-too-relevant to this issue, despite Fyodor’s efforts to obscure this point. Ethnic pandering by Norquist, Fyodor’s brother in arms in the US, helped to give a free pass for the terrorists to commit the 911 massacre. Habib was granted citizenship by a liberal Wet Minister despite being completely unsuited to a liberal civil order. Pandering to sectarians by the fledgling INDON democracy is a major reason why JI were able to murder almost 100 Australians at Bali with impunity. Not that Fyodor has shown the slightest interest in stopping that sort of atrocity. Thank God that Howard, a “realistic liberal”, is on deck.

    illegal incarceration of foreigners on GTMO

    Incarcerating terrorists perps & suspects at GTMO is still legal. It would be nice, for once, if Fyodor did not preempt the US Supreme Court’s prerogatives. I am sure “the Republic” can survive without his gruesome attentions.

    Unless you’re prepared to set a limit to state action in all circumstances, including wartime, you might as well out yourself as a fascist and move on.

    ……..
    Churchill and Roosvelt, by this absurdly ahistorical standard, were more fascist than liberal. Which just shows how ignorant Fyodor is of both social history and liberal philosophy.
    Its typical of “ritualistic libertarians” like Fyodor to bandy about words like “fascist” in disrespect of anti-fascists. I am sure my father, an actual and existing anti-fascist warrior, would have been offended by this debasement of ideological currency. Orwell, Dad’s contemporary comrade-in-arms, nailed Fyodor’s type of language perverter long ago:

    The word Fascism has now no meaning except in so far as it signifies “something not desirable.”

  79. Fyodor
    February 23rd, 2005 at 14:03 | #79

    “…miss the bigger political picture in order to satisfy his irresistable urge to over-lawyer & ethnic pander.”

    The “bigger picture”, as you call it, isn’t in question here. Habib’s alleged torture is. Stick to the point. I haven’t mentioned ethnic pandering – you’re the one who keeps bringing up that particular strawman.

    “Ethnic pandering by Norquist, Fyodor’s brother in arms in the US, helped to give a free pass for the terrorists to commit the 911 massacre.”

    I seem to remember the terrorists who executed the 9/11 attacks were in the USA on valid visas. If anybody’s responsible, it’s the US intelligence services for not picking them up. You’re fighting a strawman yet again.

    “Pandering to sectarians by the fledgling INDON democracy is a major reason why JI were able to murder almost 100 Australians at Bali with impunity.”

    Irrelevant hyperbole x3.

    “Not that Fyodor has shown the slightest interest in stopping that sort of atrocity.”

    Irrelevant, incorrect ad hominem conjecture.

    “Incarcerating terrorists perps & suspects at GTMO is still legal.”

    Except for those 50 blokes Judge Green, DC, was referring to in her judgement of 31-Jan-05.

    You can read her judgement here:
    http://host3.uscourts.gov/02-299b.pdf

    The key points are that:

    1)”…the petitioners have stated valid claims under the Fifth Amendment to the United States Constitution and that the procedures implemented by the government to confirm that the petitioners are “enemy combatants” subject to indefinited detention violate the petitioners’ right to due process of law”; and,
    2) “The Court also holds that at least some of the petitioners have stated valid claims under the Third Geneva Convention.”

    You’re on a losing horse, Jack. Get off it, before it embarasses you like your position on Iraq.

    “Churchill and Roosvelt, by this absurdly ahistorical standard, were more fascist than liberal.”

    Assertion, not evidence. The allies never imprisoned suspected enemy combatants in an extra-judicial location purely to prevent: a) civil law; or b) the Geneva conventions, applying to those prisoners. Despite your hysterical insistence of its over-arching importance, the GWOT hardly compares with WWII.

    “The word Fascism has now no meaning except in so far as it signifies ‘something not desirable.’”

    Your advocacy of raison d’etat over individual rights and liberties is entirely consistent with the fascist ideology’s promotion of state and national interests over those of the individual. I think the description’s apt, given you seem unwilling to draw any line limiting the authority of the state. If you think your dad can argue the case better than you [quite likely, but that's not saying much], get Papa on the line. Incidentally, I’m not calling you a fascist, but I am challenging you to declare yourself on the side of the rule of law, not arbitrary statism.

    In the meantime, stick to the point.

  80. February 23rd, 2005 at 18:09 | #80

    Fyodor — 23/2/2005 @ 2:03 pm …whatever….
    Fyodor is running out of steam, but can stil build up sufficient head to spout some more nonsense. Who is this self-appointed thread maestro who takes it upon himself to orchestrate other peoples comments? This is typical of “libertarians” like Rand who, whatever the liberality of their politics, are forever stomping around in a bossy-boot persona. Talk about “fascism”!
    Its a diagnostic of the Wets political Decline that they keep focusing on the judicial wood and fail to see the political trees. I will continue to point this out, if only to rub it in on Fyodor.
    He is hopelessly naive about the reality of modern US “interest group” politics. The 911 murderers were Saudis. This national group are notoriously prominent in modern terrorism (remember Bin Laden?). They were the beneficiaries of Norquist’s “libertarian” opposition to ethnic profiling and support of other security laxities. This was part & parcel of a classic Wet multiculturalist pander to Arab ethnic lobbies in an attempt to get their vote/donations. ie philosophical vanity & political amenity purchased at the expense of a sociological atrocity.
    The case of JI is more complicated by the fact that INDON is not a fully Open Society. However the INDON’s contorted treatment of terrorist agitators and conspirators like Bashir shows what happend when a lawful state needs to pander to sectarian Islamic parties to its Right and over-lawyering judicial busybodies on the Left. No doubt Fyodor is poised to crack open a bottle of bubbly in celebration of the justice of Bashir’s reprieve. I am disgusted by it.
    Incarcerating terrorists at GTMO is still, in principle and in general practice, legal – whatever exceptions are found in breach. This policy has, unlike Iraq attack, the benefit of being effective (no further Homeland Attacks) and popular (Coalition of Willing parties get more votes for being tough on terrorists). Not exactly a “losing horse”.
    The operation of the Machiavellian principle under conditions of lethal security threat is consistent with any kind of statism. So I suppose that means it is consistent with fascist (and liberal) statism. This is the kind of empty tautological point that I am happy to concede Fyodor now and again.
    He is throwing around, by implication, charges of fascism at war-time leaders – like Churchill & Roosevelt – for failing “to set a limit to state action in all circumstances, including wartime”. I suppose it was remiss of Machiavellians like Churchill & Roosevelt to fail in this juridical duty but, what with a World War an all to fight, they could be forgiven for letting it slip. There was a little thing called the Four Freedoms which they managed to jot down in their spare time, but perhaps that was too vague and windy for Fyodor’s pedantic mind.
    The Allies interned multitudes of civilians in WWII, used heavy bombing of urban areas made an alliance with General Stalin and so on, which was an unlimited application of martial law in prosecution of military victory alright. This may have been a wrong or ineffective thing, but it certainly was a thing. So Fyodor should control his urge for sweeping world-historical denunciations – unless he really does believe that Roosevelt and Churchill were “fascists”.
    Fyodor appears to think that liberalism must always and everywhere cleave to the Lockean principle of inviolable individual rights. This is too silly for words as it implies that Millian utilitarianism is illiberal in that it allows constraints on indvidual rights under conditions of national emergency, pursuit of common good etc. Therefore Mill must be a fascist too.
    So, according to Fyodor’s ideo-logic, Mill and Churchill are fascists. Now I see why Fyodor sticks to legal pettifogging as prospects for a career in political theory look dim.
    Fyodor’s usage of the word fascism in relation to GWOT politicians like Bush, Howard et al who have, whatever their faults, helped to promote democracy in Islamic countries is similarly delusional.
    I am not advocating abandoning the rule of law, still less the establishment of fascism. I am arguing that authorising some aspects of martial law in relation to constraining terrorist perpetrators is, under certain conditions, acceptable. The case of Al Quaeda suspects and accomplices (members & associates of international terrorist agencies who are reasonably suspected of being in on plots to commit mass-casualty attacks) fits my template.
    This is a communitarian concern which, like libertarian and egalitarian principes, has its place in the liberal creed.

  81. Andrew Reynolds
    February 23rd, 2005 at 18:48 | #81

    Jack,

    If we can (temporarily at least) leave aside the abuse the argument gets down to this.
    In a normal war (i.e. one between States) the laws of war apply – if you catch someone on the battlefield that is in the uniform of the enemy you are entitled to either kill them (if they are fighting) or capture them (if they give up or cannot fight). If they are on the battlefield but are not fighting and not in uniform they should be classed as civilian and you can either intern them or leave them alone.
    If they are fighting you but are not in uniform you may arrest them as a spy unless they are trying to kill you, in which case you may kill them in self-defence. If you arrest or capture them you then have to go through a recognised judicial process before you can penalise (i.e. shoot or imprison) them.
    You may kill civilians if it is not your intent. At no stage are you allowed to torture anyone. Ever.
    These laws exist for a very good reason – it has long been recognised that, after a war, the previously combatant States still need to be able to get along with each other and, if these rules are followed then there is little reason to get upset at one another once the issue has been decided on the battlefield.
    The problem with a war on an abstract noun is that there is no enemy State, there are no enemy uniforms – sorry, a towel on the head and the propensity to cry to Allah is not good enough – and very few of the enemy will admit to being your enemy to your face. They know they cannot win on any normal battlefield.
    The problem then comes down to how do you remove your enemy from the battlefield when;
    a) the battlefield effectively is the size of the world
    b) the enemy does not wear a uniform
    c) the war is unlikely to ever end.
    I believe this means that you have to treat all of the people that appear to be fighting you as spies. This means that, according to the rules of war, you are entitled to imprison them indefinitely – but crucially, you need to apply a judicial process – you have to prove they are ‘spies’ through a recognised judicial process. This is not being done at GTMO.
    The only way you can win a war on an abstract noun is to remove the reason why people revert to it. Beating them up, torturing them (or looking the other way while they are being tortured), humiliating them and imprisoning them without even the appearance of justice does not remove the reasons for the war.
    That is why I support the invasion of Iraq – to remove at least one of the reasons why the Muslims are perpetually poor and therefore angry. A good, stable democracy, if it can be achieved, would, I believe reduce the incentive to revert to a terror campaign.
    It is also why I believe that what has happened in GTMO and elsewhere is wrong – it is wrong, not only in itself, but in the context of the war itself. It increases the reasons why the Muslims believe that they are being persecuted and therefore makes the war harder to win and costs us lives in the long run.

  82. February 24th, 2005 at 00:06 | #82

    AR, you missed some things there.

    You are entitled to kill an enemy who is not fighting, unless he has surrendered; but you are under no obligation to accept a surrender even if it is offered. Surrender takes two sides.

    A person not in uniform who is not fighting may still be detained on suspicion of espionage.

    A trial need not be of the form suitable for peacetime conditions; a drumhead court martial is perfectly valid.

    Even if a prisoner surrenders in due form he may still be tried – and the law need not extend him mercy, though it may be wise to do so. See, for instance, what happened to certain Spanish who wound up in English custody in Ireland after the Armada.

    An officer, although prohibited from torture, may find himself in circumstances in which he would be guilty of some other dilemma if he extended all the duty of care he should. Then he faces a dilemma. (It is this dilemma that means that surrenders need not be accepted; “no quarter” is a lawful behaviour.)

    I could go on, but I ought to digest all the posts and make a more comprehensive reply.

  83. Andrew Reynolds
    February 24th, 2005 at 01:02 | #83

    Agreed on the surrender, but if you do not accept it, you must release the enemy – although you can strip them of their weapons. Simply shooting them is not legal.
    Also agreed on the suspicion, but, again, you must go through a trial.
    The ‘drumhead’ court martial is not in the Geneva Convention and you would still need a proper trial.
    I would think that examples from the Spanish Armada of 1588 would be an interesting precedent to introduce into a modern trial.
    No quarter is not lawful. Several of the charges at the Tokyo trials after WWII related to this behavior.

    The point here is, though, that not even a drumhead court martial has been held for any of the people at GTMO – I just cannot see where this fits into the rule of law. I do not believe it does. If they are POWs then they deserve to be treated as such. If they are not they are either non-combatants and should have been released or they are spies and should be tried.

  84. Fyodor
    February 24th, 2005 at 07:00 | #84

    Jack,

    Obfuscatory, evasive blah x n until we, finally, get you to focus on the issue:

    “I am not advocating abandoning the rule of law, still less the establishment of fascism. I am arguing that authorising some aspects of martial law in relation to constraining terrorist perpetrators is, under certain conditions, acceptable. The case of Al Quaeda suspects and accomplices (members & associates of international terrorist agencies who are reasonably suspected of being in on plots to commit mass-casualty attacks) fits my template.”

    There. Now was that so hard? I was beginning to suspect you capable of justifying any state action on the basis of raison d’etat, but you’ve come back from the brink. Now we can talk sensibly.

    AR makes the key point at #81 that a judicial process must be applied to suspected combatants or spies to make their detention legitimate. Likewise, torture for whatever its supposed worth, is illegal under our laws and under the Geneva Convention.

    As AR put it very well, the treatment of prisoners at GTMO is wrong in itself and is poor strategy.

  85. Peter
    February 24th, 2005 at 10:23 | #85

    I think most people at heart are actually a little uneasy about the statement ‘torture is always evil’, because they imagine a situation where it is either torture someone and avert disaster, or let many other people die. A thought experiment for those who try to dissemble with complaints about the danger of torture speading from isolated ‘ticking bomb’ cases to more routine interrogations:

    Imagine you are in a room with someone you *know* is a terrorist and has knowledge of a plan to kill hundreds (thousands, whatever number you like) of people. You are in a room, alone with this person, and you are able to extract information from this person only through torture. You can do this with no fear of ever being caught. Would you torture them to extract the necessary information?

    I wager that most people would do it, and I think there is a moral justification for doing. Complaining that things are never this clear-cut is just avoiding the central issue. If you agree to torture in this hypothetical case, you cannot claim that torture is always evil.

    However, I think it is perfactly acceptable to hold the view that torture is acceptable in some circumstances, but to still view it as unacceptable for any government or other organisation to hold such a view, even in special circumstances. I believe that governments (including their security and intelligence wings) need to be forcefully anti-torture (both officially and also in practice), but if I were one of those intelligence officers, and were in a dark room, presented with the sort of dilemma I’ve just posed, I dare say I would consider using torture. At the same time, I also believe that the government should show no leniency if anyone were they ever caught engaging in such practices.

    I think how the government has acted in relation to Habib has been atrocious and absolutely gutless.

  86. Andrew Reynolds
    February 24th, 2005 at 13:05 | #86

    Peter,
    That is all the more reason why procedures should and do exist to stop this situation happening.

  87. Peter
    February 24th, 2005 at 13:35 | #87

    > Comment by Andrew Reynolds — 24/2/2005
    >
    >That is all the more reason why procedures >should and do exist to stop this situation >happening.

    Andrew, I agree. Totally. I just disagee with John Q’s original unqualified premise ‘torture is evil’.

  88. Andrew Reynolds
    February 24th, 2005 at 14:30 | #88

    I agree with JQ – to me what your point shows is that all of us, even with the best will in the world, are capable of evil if we are able to justify it to ourselves. It is why there must be some point where we are capable of saying “no, this is just wrong no matter why we do it” so that the matter is clear.
    As soon as we start trying to justify some of it we can then start justifying a lot of it.

  89. Peter
    February 24th, 2005 at 15:47 | #89

    Andrew, I dont think it is possible to maintain that “torture is evil, no matter what we do”. Having these black-and-white categories of evil inevitably leads to contradictions — If someone gave you the option of torturing one person, or they would torture 1000 people, what would you do?

    In the thought experiment I proposed, you are forced to make a choice betweem two ostensibly ‘evil’ choices — either torture someone, or knowingly let thousands/millions of people die. Both are bad choices, but suppose you *have* to make one? I think the torture choice is more defensible, from a moral point of view.

    Realistically, though, I acknowledge that this is a very dangerous position both for governments and for individuals, for all the reasons people have outlined here and elsewhere. This is the why I am still strongly *for* procedures to prevent torture and *for* laws to punish those who are caught doing it.

  90. Andrew Reynolds
    February 24th, 2005 at 16:33 | #90

    No contradiction there – evil is being done. The only question is who does it. If I were a catholic, either way I would have to go to confession.

  91. February 24th, 2005 at 16:33 | #91

    AR, you can shoot rather than accept surrender – you simply continue the attack. Consider the situation after the Armistice of 1918. Also consider the lawfulness of Banastre Tarleton’s actions (the rebels accused him of murdering prisoners).

    By drumhead court martial, I merely refer to the allowance made for availability of rewsources. Think of the court martial described in the Shaw play set during the US War of Independence – I forget the title offhand.

    The “no quarter” order in advance is unlawful, but what I was getting at was that there is no obligation to offer quarter when the time comes, i.e. accept a surrender. The enemy does not have the right to make himself a human shield, as it were.

  92. Andrew Reynolds
    February 24th, 2005 at 17:35 | #92

    P.M. does that mean that you believe that it is lawful to shoot an unarmed person with their hands up approaching you in a non-threatening manner provided you simply decide to “continue the attack”? If you do I would question your reading of the law and also your moral position.

  93. February 24th, 2005 at 18:58 | #93

    Fyodor — 24/2/2005 @ 7:00 am confuses Machiavellian tactics with a despotic strategy:

    Now was that so hard? I was beginning to suspect you capable of justifying any state action on the basis of raison d’etat, but you’ve come back from the brink. Now we can talk sensibly.

    …………..
    Fyodor makes a howler that is very common amongst “ritualistic libertarians”. Although it is true that most (modern) despots are Machiavellian it does not follow that all Machiavellians are despots. Churchill and Roosevelt were good example of the latter (see below).
    Yes it is hard to ask me to assent to Absolute unconditional moral prescriptions (“Torture is Evil.” “Private Property is Sacred.”) – like pulling teeth. They are ahistorical and counter-evolutionary. Perhaps one day such propositions can be validated for all times and places but no-one has managed to pull that feat of yet.
    The pervasive and perpetual reality of evolution makes a mockery of our universal generalisations. Absolutism, whether Randian or Leninist, is ahistorical: moral codes evolve relative to varying conditions of time and place. Adapt to survive.
    Much of political life under conditions of security threat boils down to the choice between competing evils. Goodness then consists in choosing the lesser necessary evil.
    These are truisms alright, but they are fraught with enormous practical implications. In the last Great War Churchill and Roosevelt, the rotten despots, laid waste to cities and formed a pact with the Devil in order to save our skins and our souls. Is Fyodor, now that he is riding his high moral horse, going to morally condemn them too?
    No doubt there are times and places where we can all agree on doing the right thing. We should encourage impulses, and construct institutions, that favour humanitarian (Golden Rule etc).
    But it is facile, and literally “ideo-cratic” [sic], to pretend that we can lay down ideologies that now that will rule us forever. For one thing, as the fossil record shows, human nature changes. Or is Fyodor going to lay down an eternal & universal line on that too?

    the treatment of prisoners at GTMO is wrong in itself and is poor strategy.

    ……….
    The application of martial law is not “wrong in itself” (Absolutism again!). It may be right or wrong according to circumstances. Torture, as things stand, is inappropriate ineffective and unworthy in the GWOT.
    The treatment of prisoners at GTMO appears to have fallen, in some cases, below a fair and reasonable standard given the scale of the threat. But so far, going by the lack of successful Homeland Attacks, GTMO has not failed. The spartan and uncomfortable conditions of a military stockade can wear down an uncooperative inmate. We know that there has been some critical information gleaned there, and in some measure this may be due to its being a harsher martial facility.
    We are at war. Terrorists are warriors (jihadists). Therefore the more humane standards of Anglo civil law are not always and everywhere appropriate.

  94. derrida derider
    February 24th, 2005 at 21:17 | #94

    “We are at war .. [t]herefore the more humane standards of … law are not always and everywhere appropriate.”

    Jack, Stalin could not have phrased this better. All those sordid South American generals always claimed they were at war (well, soldiers everywhere tend to like war – it justifies their jobs. And politicians also like it because humans are very tribal and stop questioning their leaders when told there is another tribe out there).

    As someone else said, I fear a handful of foreign terrorists far less than I do our home-grown politicians and generals. Especially when those politicos and generals start to see virtues in arbitrary detention and even torture …

    But Jack, I should have thought the peculiar combination of malice, lies and incompetence our leaders have displayed on Iraq would have given you some pause before you happily entrusted them with these sorts of powers.

  95. Andrew Reynolds
    February 24th, 2005 at 23:22 | #95

    Jack,
    The proof that GTMO has worked can never be that there has not been another attack – that is similar logic to the old joke about pink elephants:
    “Why to you have a sign ‘Pink Elephants, keep away?’”
    “To keep the pink elephants away”
    “There are no pink elephants here!”
    “It’s working, isn’t it”.

  96. observa
    February 25th, 2005 at 01:22 | #96

    “Not bad, Observa. Jeez, me agreeing broadly with you, too? Next thing you’ll be sympathising with the Crows and I’ll be be feeling for the Power. Byron got a bit of a rough spin by the way.”

    Well Don I was cogitating about the ether as to how the object of our moral dilemma could get there until you snapped me back. You’re not insinuating that we don’t have a lot in common are you? Why, I came over all lefty, po-mo, warm n fuzzy when I hit the office after hearing about Byron. As I recall it was like this:

    ‘Get me Williams on the phone.’

    ‘Choko, maaate! What the hell are those racist, culturally oppressive pricks over at the AFL, doing to our boy. Haven’t we got their Reconciliation Officer off his arse, to get Byron off under customary tribal law or something? What about using the elders in the Port Magpies catchment area to get him off? Sorta reconcile em beforehand with some tickets complete with refreshments to the Power’s corporate box eh…?’

    ‘Now, now Observa, you know we would exhaust all avenues in a totally professional manner as always.’

    ‘Yeah… And…?’

    ‘Turns out he’d most likely get a ritual spearing in the thigh….. recovery time about 12 weeks.’

    ‘The Bastards!!!!’ Slam!

    ‘Whatta you smirking at girl………get me a cup of coffee………and make sure it’s in my favourite Power Mug!……..on second thoughts, get back here and take a memo….Subject, Occupational Health and Safety……Attention all staff….nah scratch that, not warm enough for the union rep……….Dear people, As you know management is always concerned about your welfare and in particular the possibility of a health risk with cross contamination of dishes and the like in the smoko room. Now, it has come to management’s attention that there are a plethora of identical crows mugs in the smoko room, probably riddled with bacteria…….’

    Well Don, if that isn’t concern for your fellow man then I’ll eat my Footy Park membership ticket. We business types aren’t just all about balance sheets and bottom lines you know.

  97. February 25th, 2005 at 08:08 | #97

    Andrew Reynolds — 24/2/2005 @ 11:22 pm in a revealing insight into the Wet mind, constructs an analogy relating imaginary to actual beasts:

    “There are no pink elephants here!�


    So Andrew Reynolds equates terrorists to Pink Elephants. Tell that to the maimed and mutilated survivors of Bali.

  98. February 25th, 2005 at 08:25 | #98

    derrida derider — 24/2/2005 @ 9:17 pm, on queue, committs the classic Wet howler :

    Jack, Stalin could not have phrased this better. All those sordid South American generals always claimed they were at war (well, soldiers everywhere tend to like war – it justifies their jobs. And politicians also like it because humans are very tribal and stop questioning their leaders when told there is another tribe out there).

    …………..
    The Howler goes as follows: “Although it is true that most (modern) despots are Machiavellian martialists it does not follow that all Machiavellian martialists are despots.” (See Comment #93 above.)
    No doubt Stalins, Latin dictators and common demagogues have always used bogus conflict to wrap themselves around the flag. But civil statesmen faced with real threats, who are serious about winning, have also resorted to martial jurisprudence and martial laws when in the midst of a war. Is derrider et al saying that these statesmen were illegitimate use of powers when using extra-ordinary powers (not to mention the “Bodyguard of Lies” and other necessary evils that went with many of our wars).
    Horses for courses. Terrorists are warriors. A limited application of martial, rather than civil, law is appropriate in dealing with them.

    But Jack, I should have thought the peculiar combination of malice, lies and incompetence our leaders have displayed on Iraq would have given you some pause before you happily entrusted them with these sorts of powers.

    …………
    Iraq-attack was based on lies and implemented on blunders alright, even I know that. But GTMO was estabished after Afghan-attack which was not based on lies and was not blundered. So I was, and am fine, with it in principle.
    Of course since then the US admin have gone overboard with some interrogation policies. So derrider has a point, this US admin is prone to stuff things up.
    And now the over-lawyeres and ethnic lobbyists have now turned it into a cause celebre. So, in practice, GTMO is probably more political trouble than its worth. But the martial principle underlying it is valid, and that is what I am concerned to defend.

  99. Fyodor
    February 25th, 2005 at 08:32 | #99

    Nice, Jack, nice. WTF does that have to do with GTMO? Most of the prisoners from the Afghanistan war had been at GTMO for close to a year by the time the Bali Bombing occurred. Are you suggesting that if they’d been held longer it wouldn’t have happened? The alternative explanation – that detention on GTMO had no effect on global terrorist activity – is probably closer to the mark.

    It was a cheap shot, even by your usual standards.

  100. Fyodor
    February 25th, 2005 at 08:44 | #100

    “But GTMO was estabished after Afghan-attack which was not based on lies and was not blundered. So I was, and am fine, with it in principle. Of course since then the US admin have gone overboard with some interrogation policies. So derrider has a point, this US admin is prone to stuff things up.
    And now the over-lawyeres and ethnic lobbyists have now turned it into a cause celebre. So, in practice, GTMO is probably more political trouble than its worth. But the martial principle underlying it is valid, and that is what I am concerned to defend. ”

    You really are a buffoon, Jack. Martial law is NOT a carte blanche to arbitrary statism, at least in the West. The US has very specific constraints on the application of martial law, and the US government has been found by the Supreme Court to have acted illegally in the case of GTMO.

    That is all you have to know to understand that the cant you’re spouting is total bullshit.

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