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Australians for torture ?
By jquiggin | May 17, 2005
According to this SMH report, two Australian academics are advocating the legalisation of torture, including the torture of innocent people who [their interrogators believe] might have useful information. If the SMH report is to be believed, the supporting ‘argument’ is just our old (and multiply-refuted) friend, the ‘ticking-bomb’ scenario. (Here’s my response, and here’s a fairly typical instance of the way the ticking-bomb scenario is used in practice to justify routine and prolonged torture[1].
I find it difficult to believe that this report can be accurate and I certainly hope it isn’t. The views of Bagaric and Clarke are spelt out in this opinion piece, which is as lame and morally obtuse as you might expect. A quick Google reveals that Bagaric is a Part-time member, Refugee Review Tribunal and Migration Review Tribunal, which is certainly inappropriate for someone who apparently advocates sticking needles under the fingernails of innocent suspects. At least, that was what this Age report said when I checked it an hour ago, but the relevant passage has now disappeared.
Update More from Ken Parish, Tim Dunlop and Benambra. I haven’t seen any comment yet from pro-war bloggers, but I hope at least some of them will repudiate this terrible proposal.
fn1. This was a case in Israel, but I don’t want to discuss the Israel-Palestine issue here. Any comments on this issue, or on the fact that there are other countries that do far worse, and don’t have courts to appeal to, will be deleted.
Topics: Oz Politics |
May 17th, 2005 at 7:51 am
The problem with the tgicking bomb scenario is that it requires too many assumptions to be provide a useful boundary. It is generally posed as “Suppose you knew that a bomb had been placed but didn’t know where or the hour of detonation. Then suppose you knew that a particular person would have the information…”
Well there you go. First you already know two key facts and you are merely going to connect the dots — so the cost-benefit analysis of using torture to extract the information appears persuasive.
The only problem is that I do not believe that those two points would in reality be known with such certainty.
So really the way the situation ought to be phrased is “You suspect that a bomb has been placed and you suspect that Mr. X knows…”
I think that if the question is phrased in reality, the answer is not even remotely debatable.
May 17th, 2005 at 8:15 am
Note that, at least if the report is accurate, there’s a third step endorsed by the authors.
Suppose that you know [in reality, suspect] that Y knows where to find X so that you can torture him to get the information you know [in reality, suspect] he has. Then it’s OK to torture Y to force her to turn X in.
May 17th, 2005 at 8:29 am
a link to the smh story would be nice.
May 17th, 2005 at 8:38 am
D’oh! Fixed now.
May 17th, 2005 at 9:27 am
What could motivate this guy Bargaric to write what he did and then seek this publicity? It sounds suspiciously like a job application to me. I would say that he is hoping to get a much juicier appointment from the Howard government than the refugeee tribunal; something like Solicitor General, or maybe the Federal Court.
And why not? An ostentatious public display of ideological fealty worked for Dyson Heydon. It might work for Bargaric too.
May 17th, 2005 at 9:40 am
Hmmm, I take it all back. Bagaric has published a paper saying the rich should be taxed more, because money doesn’t make us happy.
Definitely not Howard Government material.
It’s not often you get lawyers writing about tax and torture.
May 17th, 2005 at 9:47 am
We become what we despise…
Everybody’s noticed
May 17th, 2005 at 11:15 am
“Suppose that you know [in reality, suspect] that Y knows where to find X so that you can torture him to get the information you know [in reality, suspect] he has. Then it’s OK to torture Y to force her to turn X in.”
And there’s a further weakness. You can’t know that torture is any more likely in practice than skilled non-coercive methods to get the accurate, timely info you want? Particularly as, by assumption, such cases are rare and the torturer will therefore be inexperienced.
But I shouldn’t waste my time arguing with proponents of torture - they’re mostly dreaming of themselves as the torturer, and their sick fantasies should not be encouraged.
May 17th, 2005 at 11:19 am
I specially liked this bit:
‘Asked if he believed interrogators should be able to legally torture an innocent person to death if they had evidence the person knew about a public threat such as the attacks of September 11, 2001, he replied: “Yes, you could.”‘
A Swiftian may ask if it is absurd to restrict the beneficial effects of torture to merely preventing the demolition of tall buildings. Think of that enormous volume of information that is stored up in idle minds both guilty and innocent.
One excellent method of value-adding mental activity is to permit torture for all vexing issues such as: “Where did I leave my car keys?” And in maximising performance in competititive entrance exams to our more exclusive schools and colleges.
The occupational classification “Torturer” has such negative connotations. Surely it wouldn’t constitute a torturing of the English language to rebrand these useful members of society as “Cognitive maximisation facillitators”.
May 17th, 2005 at 11:29 am
By the way, the link to my post is borked for some reason. Try
http://benambra.org/benambra/?q=node/302
May 17th, 2005 at 11:36 am
Torturing rarely produces any more results that normal questioning. Its real purpose is to terrorise the population with the threat of torture.
Most reports from Gitmo suggest that they obtained no better data than the FBI did with normal investigations. Interviews like Andrew Denton does usually yield a wealth of material because the interviewee can see that he/she might survive the interrogation. If a torturer causes injuries that the subject would class as life threatening then usually the subject will tell anything to save his/her life. After the life saving line then it is all over red rover.
If you had a ticking time bomb then the best way to get the info is competant investigation, paid informers and gentle interviews. Mind you the very very best way to avoid a ticking time bomb is to remove the reason that the time bomb was planted.
May 17th, 2005 at 12:08 pm
[...] th discussion of a paper by two Australian legal academics which seeks to justify torture. John Quiggin, Tim Dunlop, Ken Parish and Robert Merkel have all ref [...]
May 17th, 2005 at 12:28 pm
Torture and police state methods work alright to reduce terrorism. The case of Nazi Germany and Soviet Russia prove that administrative violence is an effective economic alternative to counter-insurgency and normal police methods.
The problem with torture is not so much what it may do to the target tortured suspect, although this is bad enough to constrain it in all but the most dire in extremis cases. Pr Q’s solution to this conflict between act and rule utilitiarianism is admirable.
The problem with the adminstrative lawful use of torture is the damage it does to the source torturing agency.
Once a regime relies on police state methods as a routine resort for outlaws, and these are found to work, it will begin to rely on them as a first resort for lawabiding citizens. And that is a track we dont want to take one step down along.
PS I still think that terrorists fall into a third juridical category between criminals and POWs, and do not deserve the full rights accorded to such persons. Terrorist-types planning city-scale massacres, should not get the same treatment as delinquent parking offenders.
I would argue that the correctional regime for institutions such as Guantanomo Bay should be modelled on penal stockades used by military criminals during war-time or special forces training camps. That is, the inmates (terrorists susps and perps) should be subjected to a harsh disciplinary regime, drill seargeant style, designed to break their will, get them to comply with lawful military authority and provide useful information. This is good enough, under war-time conditions, for our soldiers so it is good enough for theirs.
But no physical violence against their person, or plausible threats of such, should be countenanced by the authorities.
May 17th, 2005 at 12:49 pm
One practical consideration that often escapes due attention of practitioners of disciplines that emphasise the synchronic and discount the diachronic: it is the very practical issue of time.
“Ticking bomb” hypotheticals have such urgency because, well, the bombs are ticking.
There is therefore a deadline to be beaten. The terrorist or sympathiser careless enough to fall into the hands of the authorities presumably has some knowledge of that deadline.
One way to stop torture is to say something. It inevitably takes time to determine whether that something is a pack of lies.
Often it will be too late to resume torturing, because the bomb will have stopped ticking.
But imagine that the bomb is still ticking. The potentiality for plausible lies is almost boundless.
Therefore, the question must arise for the authorities: “When, and under what circumstances, does one stop torturing?”
And think of this: let us say that the caprtured terrorist keeps telling plausible lies until the bomb explodes. At that point does it become unacceptable to persist with torture?
Bagaric’s argument says it does. That seems to be a very perverse outcome, given the legitimacy of torture.
May 17th, 2005 at 1:04 pm
There is one situation in which torture IS justified!
The proponents of torture would obviously not protest if they themselves were tortured. In fact, we should start now in case they are terrorists and know where bombs are planted. No knowledge about any bombs? Better to torture them to death anyway just in case they are lying.
May 17th, 2005 at 1:14 pm
As a confirmed RWDB and ex-soldier I can’t support the use of torture. Three major reasons - 1. Can’t trust the accuracy of the information. I personally, having considered what would happen if taken captive, would tell the buggers anything they wanted to hear if tortured and would probably sign anything they wanted me to sign. Always thought I would attempt to resist, but for how long and to what level of pain I did not know. - 2. I always hoped that if we (Aussies) had a reputation for treating our captives according to the law of war, hopefully the enemy might, too. -3. One thing I learnt in the military is if you set very high standards, in all areas, under normal conditions, then when standards started to drop under pressure (tiredness, operations, lack of resources, etc. etc.) then any fall in standards meant your performance had a long way to fall to being really crap. What this means in terms of torture is that western society, based on the rule of law etc. etc., should strive to maintain high standards and this includes not torturing.
Noting all of the above, the question then becomes ‘what is torture?’ - I don’t consider sleep deprivation torture, some do. I have no problem with applying mental pressure, it is the physical stuff I can’t agree with.
Note that I do not believe any of the combatants captured in Afghanistan, and those not in Iraqi army uniform in Iraq, are covered by the Geneva Conventions. I don’t think they should be tortured. They should be aggressively interorgated. I have no problem with their continued detention while hostilities in those theatres continue.
For those who give a stuff, I do think that members of the armed forces should be subjected to rigorous escape and evasion traning and be subjected to mild torture as part of this. This is because almost all of our enemies in history have not complied with the Geneva Conventions and it improves our personels’ self-confidence to come through challenging ordeals. (There may be some casualties - but maybe those individuals needed to be identified before the stress of real combat.)
May 17th, 2005 at 1:20 pm
“Let’s say that straight after the first plane hit in New York you had a person in custody who admitted they had overheard the [September 11] organisers’ plans and knew there were going to be further attacks, but then refused to say any more.”
i see we’re playing “let’s say”.
there’s a preceeding step, which comes before the above. let’s say your hypothetical person in custody was sufficiently well-informed to know, despite being in custody, that the attacks had begun. and let’s say he just thought to freely mention that he had more information about the attacks, despite the fact that saying this would tend to incriminate him.
and let’s say that your hypothetical interrogator is able to obtain useful information from him about the second, third and/or forth planes. let’s say he would not have been able to obtain this information, except by torture. let’s say the information does not contain any intentional or inadvertant errors.
also, let’s say that said interrogator has superiors he can immediately report his information to. i.e., let’s say his superior is not busy doing breakfast with a senator [george tenet], or tied up in a meeting with a different senator [acting chairman of the joint chiefs of staff richard meyers], or at a meeting in peru [colin powell], or very busy in florida with my pet goat.
further, let’s say said superiors have the necessary authority to order fighter jets into the air. let’s say this order can be effected in 15 minutes, and let’s say said planes can be in a position to shoot down the second, third or forth planes in a further 10 minutes.
the first plane crashes at 8:46am. it is not possible for all of the above to happen before 9:03 [when the second plane hits]. even at 9:23 [by which time the forth plane has been hijacked] or 9:38 [when the third plane hits pentagon], i would think it extremely unlikely [even, let's say, if the system for responding to terrorist attacks worked exactly as it should]. i think on this “let’s say” scenario, the use of torture would not have saved any lives.
as an added bonus, let’s say there wasn’t a system for responding to terrorist attacks, or, in the alternative, there was one but it fell apart so catastrophically that no one could tell whether or not it existed…
May 17th, 2005 at 2:22 pm
It is not so much about the torture but what legalised and institutionalised torture means. One of the basic premises of cultured, progressive, and peaceful societies, as we would judge ourselves to be, is the simple statement that the end does not justify the means. The slope downward that any society puts itself on by embracing torture where the end (information) justifies the means (deliberately hurting a human being) is a road to militaristic barbarism where any action, however reprehensible, is justified soley on its results.
Torture is a terror weapon used by repressive governments to terrorise its subjects, no more, no less. America and others, by torturing people are not after information, they are after a deterrent. They think that by torturing people they are sending a message to the insurgents that if you plant bombs and are caught you will be violently tortured possibly to death.
If a society has got so far out of kilter that it thinks that torturing people will help it then it is lost.
If a planted bomb depends on one person then it is our failing. We need to stop repressing people so that they do not feel the need to resort to assymmetric warfare techniques.
May 17th, 2005 at 2:33 pm
Jeff Sparrow has written an interesting response to the article:
http://theage.com.au/news/Opinion/A-deeply-flawed-case-for-power-abuse/2005/05/16/1116095904953.html
Its also worth checking out his blog:
http://www.sleepybrain.net/2005/05/this-torture-stuff.html
May 17th, 2005 at 2:44 pm
Ender you need your head examined. Although, to be fair, you are expressing a view held by many when you state that ‘We need to stop repressing people so that they do not feel the need to resort to assymmetric warfare techniques.’ Don’t you get it yet Osama and his crowd don’t primarily hate the Bush’s and Howard’s of this world, what they really hate are the more progressive aspects of western culture (freedom to criticise religion, equality for women, etc etc). That is why they bombed the twin towers, etc.
May 17th, 2005 at 4:02 pm
Well, buggar me (but not in Saudi Arabia). I agree with Michael Burgess.
May 17th, 2005 at 4:12 pm
Further update:
May 17th, 2005 at 4:51 pm
Dave Ricardo - you need a nice lie down, I’d say.
May 17th, 2005 at 5:07 pm
“Osama and his crowd don’t primarily hate the Bush’s and Howard’s of this world, what they really hate are the more progressive aspects of western culture (freedom to criticise religion, equality for women, etc etc). That is why they bombed the twin towers, etc.”
Say what?
At the risk of breaking the advice “Don’t mention the jihad”, if OBL and his merry men hated all that good stuff, why didn’t he bomb Hollywood, or the tomb of Voltaire, or the National Organization of Women rather than a rather bland example of late modernist architecture or the military headquarters of the one remaining superpower?
Sometimes there is no accounting for the actions of madmen, but seeing as MB feels confident in his ascription of motive, perhaps I can be just a little bold. It seems to me that OBL’s message was against financial and military power rather than enlightenment principles or female liberation.
May 17th, 2005 at 5:25 pm
John
We don’t need to speculate whether the opinions of these people are accurately represented in the article you’ve linked to, since there’s an op-ed piece by them in the same edition (i.e. today’s) of the Herald, as you may have discovered by now. There’s a link to the latter in the article you’ve linked to, and Ken Parish has a link to it as well, and can anyone tell me how I could have said the preceding without repeating the word link so many times?
May 17th, 2005 at 5:51 pm
>
Actually the Soviet Union relied mostly on a massive system of state surveilliance and repressive controls (on where people could live; what they could read; where they could work) rather than torture.
That’s post-Stalin. Except where confessions were required for show trials Stalin seems to have preferred executions (or forced labor to death under conditions that could be argued to constitute a form of torture) to torture.
One of Stalin’s secret police chiefs was a big fan of torture but more as a result of his sexual sadism than as part of any coherent policy.
Whenever this topic comes up I feel obliged to point out that Israel which does literally face the “ticking bomb” dilemma on occasion and isn;t shy about using airstrikes to kill suspected terrorists in such situations doesn’t use torture because they believe it to be ineffective.
They did use torture in the past and stopped because of domestic and international pressure. Shin Bet’s chief interrogator was interviewed in New Scientist a few motnhs back and insisted that torture is simply unnecessary.
You can get the same results as quickly and with fewer lies through “moderate physical pressure” (which includes stuff like sleep deprivation and stress positions) and psychological techniques.
May 17th, 2005 at 6:20 pm
Another torturous debate that needed to happen!
Wonder how tabloids will run with this, when Kylie has possible breast cancer. Hope they go for the latter.
May 17th, 2005 at 7:56 pm
Bagaric is off the Refugee Tribunal Board - the announcement says it had been made as an administrative decision months ago.
BTW - I heard Downer on the radio tonight doing the usual schtick about the Alvarez/Solon case, saying that he was reserving judgement blah blah but that the people responsible would be identified and then “they can be pilloried”.
I swear I heard the word pilloried. Strange kind of consent.
May 17th, 2005 at 8:21 pm
“they can be pilloried�
In view of the topic of this thread, can we assume this was meant literally?
May 17th, 2005 at 8:55 pm
[...] r « Another step Torture Recommended John Quiggin raises the issue of a SMH report that reports two Aus [...]
May 17th, 2005 at 10:11 pm
Razor nailed it.
Information gained from physical torture is unreliable.
Why do it if it produces unreliable info, is morally repellant to most Diggers, and is likely to earn the practitioner time in the slammer?
May 17th, 2005 at 11:19 pm
[...] en much ado in the blogosphere of everyone shouting down this torture article. It has been universally refuted by the entire spectrum of the Australian Blogosph [...]
May 17th, 2005 at 11:27 pm
what wbb said
May 17th, 2005 at 11:42 pm
Information gained by torture is quite often unreliable. But the dirty little secret of torture is that it works to deter resistance to tyranny. That is how Nazi Germany and Soviet Russia were able to hold down captive populations for so long. As Klein says:
May 18th, 2005 at 12:21 am
Jack, you forgot to add “in the short term”.
Humans, I once thought, had the capacity to learn.
May 18th, 2005 at 12:59 am
[...] horrendous, unthinking, and irresponsible.” Update: Some other comments here, here, here , here and here. [...]
May 18th, 2005 at 1:42 am
[...] papers simply to attract media attention. Yes, I’m talking about the unpublished but much-discussed paper by Deakin law school’s Mirko Bagaric and [...]
May 18th, 2005 at 8:51 am
Interesting aside in this deabte, was that it was reported in yesterdays TV news coverage that the Professor had received ‘death threats’ and implied that they were from students. Free speech is dead!
May 18th, 2005 at 9:59 am
There’s no mention of death threats in any of today’s newspapers. What TV news was this?
May 18th, 2005 at 10:45 am
The other point to remember about torture is that, in the First World Modern Era at least, it emerges as a tool of state policy to deal with invariable ethnic and sectarian conflict arising out of improper imperialism and immigration eg FRA in Algeria, UK in Ireland, US in Iraq, CIS in Chechyna. The take home lesson from this is to avoid culturally indiscriminate Invade-the-World/Invite-the-World political policies. We should not, without UN approval, go to alien lands to mind the native’s business and we should take care that aliens who come to our land observe our native laws and customs.
Sovereignty is to nationals as property is to familials - something to violate at our mortal and moral peril.
May 18th, 2005 at 11:00 am
ABC news last night - 7 pm edition - Melbourne
May 18th, 2005 at 11:10 am
No mention of death threats on the ABC news web site.
May 18th, 2005 at 12:10 pm
Michael.Burgess “Ender you need your head examined. Although, to be fair, you are expressing a view held by many when you state that ‘We need to stop repressing people so that they do not feel the need to resort to assymmetric warfare techniques.’ ”
This is not my view only. The only way to successfully defeat terrorists is with Hearts and Minds campaigns. The US is really really bad at this and the British and until lately Australians are really good at it. The British army has a long and successful record of good police work defeating terrorists by sapping their popular support by winning over the local populations. The US has a sad history of ignoring cultures, running roughshod over cultural differences, being trigger happy and generally pissing people off that they need to get onside. In short they really have no idea. Then they get suprised that people do not like them.
“Don’t you get it yet Osama and his crowd don’t primarily hate the Bush’s and Howard’s of this world, what they really hate are the more progressive aspects of western culture (freedom to criticise religion, equality for women, etc etc). That is why they bombed the twin towers, etc.”
Osama and his crowd are like terrorists that have existed for years. Remember the IRA? The Baader Meinhoff gang or indeed the PLO. If Bin-Laden goes the way of the leader of the PLO he could wind up president. There is no excuse for killing humans and 2 wrongs do not make a right. Torturing people because they killed some of our people is just plain wrong.
Also you are commiting the same error as the US. We need to leave people to live how they choose not impose our ideas on them. To some Muslims our society is a sick, godless one. You are imposing your views, from our culture, and saying muslim countries with Sharia law are repressive and they would be better off with our democracy. You are committing the same arrogance of the US which leads them into so many problems. You are unconscously saying we are superior and ‘you natives’ would be better of with our way of doing things. Then you act suprised that the natives get upset when you are only trying to make them see the advantages of superior cultures.
The attacks on the trade centres are are end results of the this cultural insensitivity and paternalistic attitude.
May 18th, 2005 at 1:00 pm
If it is true that the nation in the world with the least cross cultural skills is the USA it is amazing considering that it has to be the most culturally diverse nation in the world currently.
May 18th, 2005 at 2:43 pm
This will get me tortured
The evil T word “torture” has been uttered again, and predictably the entire blogosphere has gone nuts. I know, I know, it’s not very fashionable to support something so unpopular, but I’m going to do it anyway. Well, not so much as support, but no…
May 18th, 2005 at 2:57 pm
Tortuous Reasoning II
The debate on the Bagaric/Clarke pro-legalisation of torture article continues today - Monash legal academics Sarah Joseph and Marius Smith respond in The Age, and in the blogosphere Rob Corr, Currency Lad, David Starkoff and Cristy all enter the lists…
May 18th, 2005 at 3:01 pm
Ender says “The British army has a long and successful record of good police work defeating terrorists by sapping their popular support by winning over the local populations….Remember the IRA?”
Yes, the IRA are still about, and my relatives in Northern Ireland could tell you a lot about how the British Army “won over the local populations”. It has already been mentioned that recent examples of state torture include UK in N.Ireland. Who do you think they were torturing? The same locals they were “winning over”!
May 18th, 2005 at 3:51 pm
Yes the IRA is still about. No one is perfect and there will always be exceptions however, the British Army has the best record. I was on a course with a guy that was a Para there - I do know a little about it.
In this case however the cultural differences are less as they are both white christian people that worship the same prophet of the same god in slightly different way. There is less difference here than between muslim and christian. The torture you mentioned is a perfect example of how it is used to intimidate local populations and how ineffective it really is. It is a sign of how desperate the Brits must have been after umpteen years of war.
May 18th, 2005 at 5:50 pm
“You are imposing your views, from our culture, and saying muslim countries with Sharia law are repressive and they would be better off with our democracy.”
Ender obviously isn’t a fan of the liberation of females.
Who needs enemies when you’ve got friends like this helping improve the third world.
May 18th, 2005 at 6:18 pm
Hey Razor - don’t start characterising me as this. I fully and totally support liberalising women (not females). The way to do this however is working with a culture not at the point of a gun. Torture does not help the plight of repressed women. The real and lasting gains have been made usually by courageous women from within the culture not imposed from outside.
The point is that a paternalistic superior attitude will always get resistance. Also as a male I do not think that it is appropriate for me to bung on about womens rights.
May 18th, 2005 at 10:53 pm
I have missed something here. Isn’t the argument for state sanctioned torture the same as the argument for state sanctioned killing ie legal war. If there are sometimes situations where it is ethical for the international community to go to war, then surely there must be situations where it is ethical to torture. I agree that rarely will torture be an effective means, but there would surely be some situations where it was an effective means to an end. There must have been situations during WW2 when torture was effective. It is still a wrong thing to do, but like war it could sometimes be the lesser evil as compared to not doing it. I thought that was ethics 101, but I’m obviously missing something.
And for the record I am opposed to the Iraqi war and capital punishment. And I think the bans on chemical and biological weapons and mines are a good thing.
May 18th, 2005 at 10:55 pm
Jack - all your egs are of the “improper imperialism”. Care to back up your inflammatory claim that state torture has arisen in the West due to immigration?
Now I understand your steadfast opposition to multi-culturalism, but you are really pushing it this time.
May 19th, 2005 at 3:41 am
John . . . I posted this on Crooked Timber–just cross-posting here.
I know nothing of Australian law, but here in America I think one has to challenge not only torture as a method of interrogation, but even the idea of interrogation itself.
The question I want answered first is: “When does the government have the right to interrogate—i.e., to demand information from any individual?� Certainly, in criminal cases before a court, witnesses can be made to testify under U.S. law. However, the 5th Amendment protects people from incriminating themselves. Given the existence of the 5th Amendment, one could argue that if torture were legal in the U.S. (and I hope it never will be), only innocent people could be tortured, because the guilty would be protected by the 5th! It’s unlikely that anyone who knows the location of a ticking time bomb and doesn’t want to divulge the information willingly would be innocent of all crimes, therefore torture would effectively be prohibited by the 5th amendment in criminal cases.
Outside of criminal cases, the only other situation in which I could imagine the government having some power to interrogate would be during time of war, when captives might be open to interrogation. The treatment of these captives, though, would normally be guided by the Geneva Conventions.
The Bush administration has claimed a third category—enemy combatant. I see no Constitutional justification for this third category and there’s certainly no clear “due process� for handling this third category, if it is in some way legal. What’s dangerous about this third category is that the executive can apparently declare anyone an enemy combatant without any due process or judicial oversight, detain that person indefinitely without any charge, and do whatever it wants to that person (including endless interrogation and maybe even torture). I can’t see how this third category with no rights and subject entirely to whims of the executive branch without any check or balance from the judiciary could possibly be acceptable under U.S. law—it seems completely against the spirit of the Constitution—but it seems to be where we are headed.
Posted
May 19th, 2005 at 7:01 am
More from Crooked Timber, cross-posted here
It seems to me that the Constitution really only allows the federal government to exercise the strong arm of power in two contexts: criminal justice and war. Terrorists (including enemy combatants), therefore, must be covered either by the laws of criminal justice or the rules of war. If they are covered by the criminal justice system, then we all know there are a vast number of checks and balances built into the system to ensure individual rights are protected and the public has oversight of the executive’s action in attempting to deprive the accused of life, liberty, or property (these checks and balances include the double jury system, the Bill of Rights, and the Constitutional division of powers and responsibilities between different branches of government, all three of which are involved in criminal justice in some ways—Congress by passing the laws, the executive by prosecuting the case and punishing those found guilty, and the courts by managing the trial). As I argued above, however, interrogation cannot really be pursued under the criminal justice system, since the 5th Amendment gives the accused the right to remain silent.
So we are left with the war powers as the only option for dealing with these alleged terrorists. And here we face a number of serious issues:
Can war really be declared against individuals or groups that aren’t actual states?
I’m skeptical about this, but I’m willing to accede that it may be necessary in some cases. Note, however, that a Congressional declaration of war against an individual seems very much like a Bill of Attainder, and Bills of Attainder are specifically prohibited under the Constitution. Also, the “Privelege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.� It’s hard to see how terrorists not in active invasion of the country (non-citizens) or in rebellion (citizens) would qualify under the two allowed exceptions to Habeas Corpus.
If we do decide that the war powers can be exercised against individuals or groups, can the executive exercise these powers without Congress first giving its authority through a declaration of war against the specific group or individual?
Here I would demand a declaration. Leaving it to the executive seems dangerous to liberty. I want some check and balance on such an extraordinary power.
Shouldn’t declarations of war always be public?
Here again I would say yes. If the extraordinary power to deprive people of life, liberty, and property through war is to be granted to the executive, shouldn’t both public consent (through Congress) and public notice be required? A declaration is not a declaration if it is not declared openly.
Should Congress be able to put time limits on the declaration?
Leaving the duration of war solely to the executive seems to allow for unlimited war—again a dangerous threat to liberty.
Are those captured in war criminals?
It seems to me the answer is clearly no for soldiers fighting for their country. We treat these captives as innocents (essentially this is the spirit behind the Geneva Convention)—people simply acting in defense of their country. If we think they’ve committed crimes, we transfer them to the criminal justice system for prosecution under the appropriate criminal law. Note that the Constitution gives Congress—not the Executive—the power “to make Rules concerning Captures on Land and Water.�
For people who are acting independently of a state, however, do we treat them as innocents?
The closest the Constitution gets to this issue (at least as I read it) is in giving Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.� Pirates seem to be the closest thing to today’s terrorists—stateless individuals exercising warlike powers. I am not an expert here, but I think historically pirates might have been captured by the military, but they were then charged with a criminal offense and given an ordinary trial do determine guilt or innocence. If this is true, then the precedent seems to be that we can capture terrorists using military power, but once we capture them, we need to transfer them to the criminal justice system for any kind of prosecution. I would also expect them to be treated just like ordinary soldiers (with the presumption of innocence) until being transfered to the criminal justice system for prosecution. I don’t see too much room for interrogation (or torture) here.
So is interrogation (never mind torture) allowed ever?
Well, it’s up to Congress to define the rules for the treatment of captures on land and sea. So if the law allows it, maybe, though not in criminal contexts (where the 5th Amendment allows it only if the accused provides answers voluntarily). Right now it seems to me like the only rules that apply are the Geneva Conventions (ratified by Congress)—and these don’t seem to allow coercion. So right now neither interrogation nor torture seems to be legal to me. I admit, though, that I am not a lawyer or legal scholor, so I’d be interested in the opinions of anyone more knowledgeable than I in these areas.
May 19th, 2005 at 9:21 am
Interesting post RSL.
The point you make here merits further discussion:
‘For people who are acting independently of a state, however, do we treat them as innocents?
‘The closest the Constitution gets to this issue (at least as I read it) is in giving Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.â€?’
I want to consider “Law of Nations”.
“Law of Nations” is the eighteenth-century nomiclature for “International Law”.
It appears that the Founding Fathers intended the phrase “and Offenses against the Law of Nations” not as a qualification of “Felonies committed on the High Seas”, but as constitutiing a separate sphere of Congressional competence.
Thus Congress is accorded the right to pass laws aimed at punishing offenders on the high seas, where no national laws apply, but also pass laws aimed at punishing persons who have breached international law in places where national sovereignty has been asserted and recognised.
This latter case is more or less an exact description of the folks at present languishing in Gitmo and various other oubliettes scattered around the bleaker parts of the world under the direct control of the Bush Administration in his guise as the Commander-in-Chief of the US Armed Forces.
And as you suggest, RSL, it appears that the constitutional right of Congress that you allude to simply allows Congress to legislate to have accused malefactors to be tried in US Civil Court.
Thus, it lies within the competency of the US Congress to legislate to nullify the spurious legal category of “illegal combattant” unconstitutionally invented by the Bush Administration.
May 19th, 2005 at 11:23 am
The US has in the past undertaken military action against entities which it didn’t recognize as a state - i.e. the confederate Sattes of America and, probably, various Native American that weren’t recognised as nations.
It suspended habeus corpus during the civil war and interned Japanese-American citizens during World War II without due process in civil courts.
This isn’t intended to bash the US - jsut to point out that there are precedents for military action against entities not recognised as states and has interned civilians withotu resort to the civil courts.
Presumably the egla and constitutional issues involved were dealt with at the time.
May 19th, 2005 at 2:24 pm
Ian, although the US Congress may have the right to pass laws to curb the power of the US Executive, as you point out, does not imply that Congress has had the will to curb the Executive.
In fact, as you imply, the historical record suggests the opposite.
And I wouldn’t hold my breath in expectation that Congress is going to start to exercise its right any time soon.
May 19th, 2005 at 10:12 pm
OK I see what I missed. I knew that the Geneva convention was against torture but I didn’t realise that it was very strongly against torture, and I didn’t realise it was international law not a convention.
So that means torture illegal. And that’s a good thing. Anything that limits the damage that can be done during war is a good thing.
So that then brings us back to John Quiggin’s point. There may be situations where it is the most ethical thing to do to break the law against torture. But if the law is broken the consequences should be taken.
I can imagine quite a few situations where a high value prisoner during WW2 would have had very valuable information which could have been extracted by torture (and usually the most effective torture would be mental ie sleep deprivation etc rather than physical per se). Do we know of situations where the Allies did torture prisoners and actually obtain useful information?
May 20th, 2005 at 6:26 am
Katz, I’d agree with both of your posts above. I think Ian is right about the precedents, but I’m not confident the Constitutional issues were adequately addressed at the time. During time of conflict, great deference seems to be given to the military and the executive. Presidents also like to interpret the powers of the Commander in Chief very broadly (the Constitution is frustratingly silent). If Congress is controlled by the President’s party, Congress generally won’t challenge him. When Congress is controlled by the President’s opposition, there’s more of an effort to reign him in.
Don’t have much hope that the current Congress will try to reign in Bush.
May 20th, 2005 at 9:20 am
Too true RSL,
But the War Powers Act (1973) does provide a somewhat hopeful precedent for congressional willpower.
The War Powers Act requires the president to inform Congress within two days of military action. Armed forces must be removed within sixty to ninety days unless Congress approves of the action or declares war.
At the very least the War Powers Act establishes the constitutionality of curbing the authority of the Commander-in-Chief to act unilaterally.
May 20th, 2005 at 1:42 pm
One point that seems to be missing in all (most?) of this thread is the very basis of our (and most civilisations’) moral/ethical/legal system is the imperative “Do as you will be done by”. Do the people advocating, if not torture, then forceful interrogation ever consider how they would like to be treated should they find themselves in that situation?
May 20th, 2005 at 11:19 pm
Katz
The War Powers Act was one of the best things Congress has ever passed in my opinion. Something like that is now needed to define (and limit) the Executive’s powers in detaining and interrogating terrorists and to create some kind of due process for these types of detentions.
Unfortunately, I fear we will need a political climate similar to that in 1973 before any such legislation could get through Congress. In 1973, the prestige of the President and the military were at a near all-time low, thanks to Nixon and Vietnam, and we had Democrats controlling Congress and a Republican President.
I guess if we want to be optimistic, though, we can say that the one good thing about Iraq’s looking more and more like a disaster of Vietnam-like proportions is that the political climate may resemble that of 1973 sooner than we think!
May 23rd, 2005 at 1:44 pm
RSL,
I’m afraid that Pollyanna might shake her head in sad wonderment at the optimism of foks who foresee a Vietnam-magnitude correction arising from Iraq. There are several reasons for this:
The Bush Administration has been quite effective at tailoring their policies and their rhetoric to events on the ground in Iraq.
The media have been well-and-truly neutralised.
There is a ready-made exit strategy of pointing to the establishment of a democratically elected government as a marker of success.
There is no draft.
There is no sizeable pre-existing counter-cultural movement in the US which can be energised by the war.
The Republicans have constructed for themselves a more-or-less permanent large minority of congressional support by careful grooming of the Christian Right. Therefore, it will be almost impossible for a Republican-unfriendly Bill to pass into law over the veto of a Republican president.
May 23rd, 2005 at 3:20 pm
I don’t know what all the fuss is about. The latest entries at Fafblog provide an unanswerable, if not correct, rebuttal to any torture nay-saying. Just see the postings about omelettes/eggs with its “idea of an omelette”, and the one about the calculus of freedom.