Thursday, May 14, 2009

Talking Points and Questions on Detention at Guantanamo Bay and the Enhanced Interrogation of Terrorists

Current issues discussions in my Government Class have naturally led to a dust up over water-boarding and detentions at Guantanamo. I organized my thoughts and shared them with my students. Only one got up and walked out. I have recorded my thoughts below.

The argument that claims that water-boarding has been classed as torture by past US judicial action is based on references to lists on which true torture techniques; actions such as beating, clubbing, and burning with cigarettes have been delineated. It is at least questionable as to whether water-boarding alone would have been considered torture. Be that as it may; it is instructive to note that Congress could not pass a law against water-boarding, nor has the Supreme Court ruled it as cruel and unusual punishment or as torture. The Constitution gives one person, the President of the United States, the prerogative to act in the extraordinary circumstances encountered in defending the nation. President Bush made one decision, President Obama seems to have made another; does that mean that either man was wrong?

Detention of enemy combatants has long been acceptable under the rules of war – including the Geneva Convention. At one time the solution for dealing with enemies captured on the battle field was to massacre them, make them slaves, or exhibit them in bloody obliteration at the Coliseum.

The Geneva Convention treaties are applicable within certain express criteria which, terrorists do not fit, (fighting for their country, wearing a uniform, acting under orders of a legitimate and recognized chain of command), therefore the US is not bound to treat terrorists in the same way they are required to treat enemy soldiers captured in treaty relevant conflicts. It should be remembered that spies can be shot or hung, a rather severe violation of their human rights, because they are not covered by treaty protections and because they are in violation of the rules of war. Since none of the terrorists captured wore uniforms, and therefore were all in violation of the rules of war, could they not have been tried at the “drum-head” as spies and hung?

There is a difference between an enemy combatant and an accused criminal prisoner. Enemy Combatants are not entitled to the presumption of innocence, there is no due process requirement in relationship to them, and there is no obligation to provide them with a speedy and public trial. No trial is required at all.

Similar differences apply to POW’s. (Although enemy combatants are not POW’s, POW’s are referenced here to show that there are accepted exceptions to US Constitutional standards.) POW’s do not receive trials; they can be exchanged, but need not be released as long as “the War” continues.

I note that some enemy prisoners have been tried for “war crimes” after their capture – a clear violation of the Geneva Convention – and some have been executed by US and other tribunals. It is curious that many of those who decry “harsh interrogation” cite these acts with glee.

Many things done to prisoners, criminal and otherwise, are painful and humiliating. Besides the horrors of imprisonment; hard labor, solitary confinement, restricted diet, imposed schedules, the loss of First Amendment rights (no free speech , assembly, press, the right to vote, etc.), not to mention execution, surely the cruelest form of punishment imaginable; are all inflected on American Citizens with full Constitutional rights. It is because imprisonment is torturous that the threat of it can be used to coerce criminals into plea-bargains and confessions. Obviously, we are capable of drawing lines. Prisons are for punishment as well as rehabilitation and all punishment seems cruel and unusual to those who are being punished.

When one is battling enemies on the battle field, it is apparent that one is justified in using any tactic necessary to destroy the foe or render him harmless. Once an enemy surrenders, morality dictates that he be treated differently. However, if he, by his refusal to cooperate, continues to threaten lives, he is not rendered harmless, and one is forced to consider what actions can be taken to eliminate such a continuing threat. This sets up the “ticking time bomb” scenario.

It is reasonable that an enemy rendered harmless has a certain just claim to humane treatment, even protection; however, if they are not harmless, can the drastic measure we use to render enemies safe be considered for use against them? Realize that in order to make enemies “harmless”, we have fire-bombed cities full of civilians, we have sunk ships packed with thousands of conscripted soldiers and sailors, we have unleashed atomic bombs and vaporized thousands of innocent children. To protect our nation and its citizens, our heroes – on the battlefield and in law enforcement –stab, beat, club and shoot people everyday. Police officers even shoot down common thieves who appear to threaten them and kill burglars in high speed chases. Lawmen have shot down drunken innocents who simply found themselves in the wrong place at the wrong time. We impose blockades, starving millions; we cut off medical supplies to entire nations, allowing disease and suffering to spread; and we destroy economies, ripping apart families and devastating generations. We send our own children into violent service which often damages their physical and mental health for the rest of their lives; all too often they are killed. We require our police and firemen to run into burning and collapsing buildings, our pilots to complete dangerous training and frequently perform life threatening maneuvers so that they can be prepared to defend us.

An applicable analogy?

Child abuse is wrong. Burning a child with cigarettes, or hot irons, or burning coals would be child abuse. Whipping them with a lash, cutting them with knives, breaking their bones or joints is recognizable abuse. What about spanking, or grounding? I know some children who feel they are “verbally abused” when scolded by a parent, or even when their opinions are questioned by a teacher. There are those who think having to do their homework is torture, learning made into punishment. Can we draw lines between abuse and actions which coerce children into right behavior by practices which are painful, disagreeable; even humiliating? Are such actions ever made permissible by the greater issues to be considered?

How are these lines drawn – who draws them – can reasonable people disagree on them? Should the consequences of a child’s disobedience or a terrorist’s subterfuge be considered in drawing such lines? Who gets to decide?

7 comments:

RealFruitBeverage said...

Lysis in this post there seems to be a lot of topics that warrant a book in themselves let alone a single post. I have distilled three things you mentioned I would like to discuss and in some case disagree with you on: one what torture is, two torture’s permissibility, and three the difference between permissible and prudent behavior.

You bring up certain examples of what might be considered torture to haze the lines a bit. In nearly all of the examples you mentioned you failed to recognize one key factor; the people being subjected to harsh conditions or treatment do so voluntarily. Police officers and fire officers know the job they are getting and do so willingly. We have yet to put these jobs to conscription. The people we send to war and armed conflicts are members of our armed forces or civilian contractors. Both of these groups of people choose this profession. In the instance where you point to examples that do not contain people who are subjected to a consent of sorts you miss another factor; the issue of control. When a police officer uses physical force to obtain control over a person the police officer doesn’t have complete control over that person. The same can be said for soldiers who shoot the enemy, they lack complete control over the people which they kill or injure.

The instances of torture that are in heated debate have a couple of key factors. First we maintain absolute control over the prisoners. Their well being is at our complete leisure. If and when they eat, when they sleep, exposure to the elements, whether they will be subject to violent acts are all issues that the prisoner essentially has no control over, we do. If the proper prisoner controls are done they pose no threat to us while in our custody. Second we think that these prisoners have information that will increase our safety if we knew the information. Third we do/did these activities of torture to extract information.

I think the third point is important to note. If it were not for the benefits perceived or otherwise harsh treatment would be a mute issue. From this perspective we are talking about a very particular type of torture. I think we can agree that inflicting extreme amounts of pain just to make the prisoner suffer is wrong.

The difficulty of defining torture is it deals with pain. Pain for the most part is a relative issue. What is painful to me might not be to another. What is tolerable to one is not to another. Granted there are extremes that we would discount as being relative. For instance being set on fire is painful to nearly everyone. It is the gray area where we come to some confusion. For instance I put myself through a lot of pain to prepare myself for my job. To some the amount of pain during the activities and the soreness afterwards would be considered painful enough as to warrant calling it torture if it weren’t voluntary. I don’t have all the answers for the gray areas but I do think I have come up with some guidelines that we can follow. One guideline is that the treatment should not cause any enduring physical disability. Other guideline prisoners should be allowed to practice their religion so long as it doesn’t compromise security. We should also not allow treatment that would cause the body to initiate a survival mechanism to which it thinks death is immediate. Nor should we behave or threaten behavior that we are not allowed to do. I personally think clearly that anything outside of these criteria is torture and should not be tolerated. Under these conditions water boarding is clearly torture. If you have never been water boarded and you say it isn’t torture have it done to you. I am 100% sure you will change your mind.

There are still a lot of treatments that fall outside of the lines I mentioned. I think that for the most part those areas are dictated by society at large and speak to the kind of society we are. How we treat our enemy or our suspected enemies I think speaks the loudest of who we are as a people.

As for torture being permissible on the grounds you mentioned I think I disagree with you on your legal analysis. On this one we have to wait. There is a solid answer it just hasn’t been asked in the right forum yet.

This brings me to my final area of discussion. Even if the law does allow torture on any level it doesn’t make it prudent to do so. By polarizing torture we have essentially prevented a real discussion about what permitted activities are prudent to do and not to do. I think in the long run we have wasted valuable time that could have been spent on what is effective.

Lysis said...

RealFruitBeverage – Thank you for taking the time to read and comment on my thoughts. Your experience and training puts your opinion on the highest level of credibility. I hope you realize that I am not presenting a doctrine. I tried very hard not to take a position on any of the topics you detail – rather I sought only to ask questions. Your answers are appreciated.

Let me probe a little deeper into the three points you distill:

1. What torture “is”.

Soldiers do not volunteer to be tortured, nor killed; rather they volunteer to fight for freedom or the lives of others; for the defense of those they love. I would argue that terrorists, at least these three who have been water-boarded, did not become terrorists to be captured, killed or tortured. They become terrorists to gain power. Getting caught, imprisoned or water-boarded is as incidental to their goals as getting killed in a collapsing building is to the aspirations of a fireman. The difference is their reason in doing so, their motives. Our heroes risk their lives to serve the greater good; terrorists forfeit theirs in an effort to unjustly dominate the lives others. Terrorists also choose their profession.

I am willing to accept your expertise on water-boarding, but you yourself admit that other lines are hard to draw.

My students did not volunteer to learn or grow, they come to school to sit and muse on what they will do as soon as the last bell rings. To many of them, requiring a few minuets of effort, even in their own behalf, is painful abuse. Did any child choose a strict or negligent parent? And in which case is the child most abused? And in either, what does their opinion matter?

2. Torture’s permissibility.

Here, your answer is not clear to me. My questions remain. We do not have complete control over prisoners if they will not tell us how they are continuing to kill and harm. We do not have leisure if their former actions, plans, and associates are continuing to instigate slaughter. When one is sitting on a time bomb it is hard not to be threatened.

I still have a student sulking in his bedroom because he must write his book report. His confinements, loss of privileges, deprivation of companionship are very painful to him. Is he being abused? As his guardian, am I entitled to consider a greater good? If he refuses to comply with my sanctions, my only recourse will be to through him out into the streets where his suffering and the long term effect on his life will be devastating. Would I be justified?

3. Difference between permissible and prudent.

I think prudence by definition rests on cost benefit analysis. It sounds a lot like Plato’s “expedience v justice”. The difficulty comes in seeing any situation from the most all-encompassing perspective. Alcibiades’ answer to Socrates’ claim that all expedient things must be just was to ask the master, “What is justice without warships?” Plato failed to answer the question – perhaps you are prudent not to try – but as our nation and our way of life is under attack, perhaps it would be wise to determine what is permissible.

Lysis said...

P. S.

I couldn’t resist one little chuckle.

You say, “For instance I put myself through a lot of pain to prepare myself for my job. To some the amount of pain during the activities and the soreness afterwards would be considered painful enough as to warrant calling it torture if it weren’t voluntary.”

I suppose we will now be flooded by ACLU supported legal actions on behalf of Ben Laden and others who have suffered from the discomfort of the caves they have been forced to live in and the stress they have endured because they did not voluntarily run off into the mountains.

RealFruitBeverage said...

Lysis let me retort or should I say clarify. You as with soldiers they choose their work. Associated with that they choose the risks they expose themselves to. They definitely do not choose to have those risks become actualizations. This is where I need to clarify; it is not necessarily the faulty of the people who put the soldiers in that position’s fault. That is to say we are not liable for the pain caused someone when they get shot; it is the person doing the shooting. So while it is not torture on our parts when we put a person in a position that could be considered torture doesn’t mean that torture isn’t happening. This applies to your terrorist example as well. Terrorist accept certain risks but that does not absolve the people that are directly involved from the moral consequences of inflicting harm. We have a couple of issues here one of level of consent and who is being consented to. I think it clear enough now, but then again.

For your response to my second area, there is not complete control on the level to which you mention because we as human beings are able to choose and think. However I think you would concede we have absolute control over the individual in custody on the same level we have absolute control over individuals in maximum security facilities in our country’s detention system. I avoid the issue of children because that is a whole other discussion about free will and autonomy. Not that the examples weaken my position, I just don’t feel that they are germane to the conversation at hand. Simply children everywhere are considered a different class of human being. That is a harsh reality to a teenager, but a true one.

As for prudence, the only sway torture has for us is a promised benefit. If it be so that those benefits are not in existence then torture has no sway. I think we are to the point in our moral development that inflicting pain for the sake of it isn’t considered a moral option anymore. You never know though you do teach an interesting clientele.

Lysis said...

Dear RealFruitBeverage,

I had forgotten how much fun discussion can be and how much I can learn from a thoughtful mind.

Your point, “Terrorist accept certain risks but that does not absolve the people that are directly involved from the moral consequences of inflicting [on terrorists, I suppose] harm”, is excellent. However the argument does come around on itself. I believe this is a true example of “begging the question”. We must ask when inflicting harm is justifiable. As surely it is in some cases, for example, the bombing of cities during war and the execution or imprisonment of murderers. This leads logically to your next point.

I would agree that harming someone under one’s control is not justified. But I continue to question if a terrorist, whose actions are capable of on-going harm even while they are held, and which harm could be stopped by obtaining information they withhold, is really under control. If they can be brought under control, to the point of being harmless, by violent actions; at what point must that justifiable violence be curtailed? Is it when they are held or when they stop hurting others? To reiterate; does their defiant withholding of information necessary to stop violence justify action beyond their physical confinement?

In our discussion on enhanced interrogation we have neglected any mention detention. Since terrorists have not been rendered harmless and often even profess the determination to go on terrorizing, and since the Constitution does not imposing a presumption of innocence on enemies taken on the battlefield, questions can be considered. Can terrorists justifiably be held until they are no threat; and if they can never be rendered harmless can they be held forever?

I included the “child abuse analogy” only to illustrate that there are recognizable degrees of “coercion” which can be exerted, and the opinions of those being coerced, child or terrorist, need not be the determining factors as to the rectitude of such actions.

As to prudent – no one in the CIA, the military, or the Bush Administration should or is advocating torture for the purpose of producing “pain for its own sake.” (Incidents at Au Grab which lead to prosecution and punishment of perverts are proof of the determination of those in authority to prevent not to promote abuses.) Banning such atrocities is just and reasonable, but are there actions beyond simple confinement which might be justified if it is for some other “sake”?

To continue the analogy; hitting a child for the “pleasure” of seeing it squawk is never justified; spanking is so it will not run into the street, or eat paint chips, or even beat up its little brother, might be prudent, and therefore permissible.

Spidey said...

Lysis,

Could you answer some questions for me?

When is "war" justifiable? In the case of Afghanistan, the United States invaded after demanding they turn over a citizen, and the U.S. refused to provide evidence of his guilt.

In the case of Iraq, the United States and other countries arbitrarily decided that Iraq should not have WMDs. Even so, there is no evidence that there were WMDs, and yet the U.S. invaded anyways.

So, in my opinion, anyone captured by the U.S. in either of these conflicts is unjustified and should have been let go.

Now, as to torture in general. Let us assume that the wars were justified. Should someone be tortured to obtain information? No. Once governments are granted powers, it will not stop at just enemies. It will expand to all kinds of different circumstances.

Lastly, one cannot compare children to adult war prisoners. The one is an adult, the other is a child. How children should be treated should be dependent on their maturity. How prisoners are treated should be dependent on the crime.

Lysis said...

Spidey

I will give you some of my opinions, we might then discuss weather they are anything true, good, beautiful, or just. You will have to find your own answers.

I would say that war is a justifiable act of self defense. One can defend one’s life, one’s liberty, and perhaps even one’s “pursuit of happens”; any number of unalienable rights granted to humans by nature or nature’s God.

As to your comments on Afghanistan: I would point out that OBL was not a citizen of Afghanistan. He and his Al-Qaida thugs were seeking refuge in that lawless and illegitimately dominated territory. They were criminals on the run. The Taliban were not a government of a nation – they had usurped power. The United States did not recognize their claims. They did have enough “control” over the country to be guilty of harboring confessed terrorists attackers on the United States. Our President gave the Taliban the opportunity to peaceful hand over the foreign and fugitive villains who had assault and continued to threaten the life and liberty of all Americans, from their refuges in Afghanistan. The Taliban’s refusal to do so constituted complicity with Al-Qaida’s actions and justified the U. S. response. Therefore, your claims to the contrary, all Taliban and Al-Qaida fighters and their supporters captured in Afghanistan are legitimate prisoners and can justly be detained.

As for Iraq: WMD was only one of 14 reasons for the liberation of Iraq. Whether the Saddam Husain regime had functioning WMD at the beginning of the War, something we do not know, or not – there are other things to consider. The “Sadamits” had possessed and had used WMD in the past and had programs in place to develop more, and the desire to create even more terrible threats. U. N. resolutions to stop these programs were defiantly ignored by the Iraqis. This, together with other threats to life and freedom, justified the liberation of Iraq. I refer you to a pre-war speech by now Secretary of State Hillary Clinton clearly justifying all actions approved by the Congress and carried out by the President. Claims to the contrary are deceitful and political. Prisoners of War detained in Iraq have been processed and repatriated according to the rules of war. Terrorist who attacked Coalition forces and the Iraqi people after the war have likewise been and continue to be justly detained.

In both Afghanistan and Iraq, our enemies, soldiers and terrorists, have and continue to threaten the life, liberty, property, and security of the U. S. and have been and are being justly dealt with.

As for “torture in general”: You say no one should be tortured for information because allowing such actions should lead to our government torturing for “any” reason. You have no evidence to support this claim and no logical reason for making it. Our government shoots drug dealers and other violent criminals all the time, but they have not commenced the slaughter of innocent citizens on any level what-so-ever. That was Saddam’s way. Our military has bombed and shelled our enemies for generations; they have not attacked our cities. One must look to the Taliban to find such atrocities.

As to your final comment on children and prisoners: I agree with you. The analogy only applies to the process of drawing just moral lines. Even as we can draw lines between the just and unjust treatment of children which enable us to differentiate between discipline and abuse, we can also set standards for the just treatment of terrorists based on criteria other than blanket rejection of all actions beyond litigation. I often present, to my students, the segments that divide an orange as an analogy to explain the lines of longitude on the earth. That does not mean that I am trying to say that planets are fruit.

Thank you for your comments. I hope you will further your points by a response.