Wednesday, December 17, 2008

Torture is Tactical; Rapport is Strategic

On the subject of torture and the war on terror, consider this column by "Matthew Alexander," (psuedonym), a military interrogator in Iraq, discussing the advantages of rapport building over torture in Iraq. One of the things he learned was torture and abuse by Americans was a major recruiting tool for foreign jihadis. Another was that being treated humanely could be a serious blow to terrorists' world view. He also gained valuable insight into the insurgents' motives:
Over the course of this renaissance in interrogation tactics, our attitudes changed. We no longer saw our prisoners as the stereotypical al-Qaeda evildoers we had been repeatedly briefed to expect; we saw them as Sunni Iraqis, often family men protecting themselves from Shiite militias and trying to ensure that their fellow Sunnis would still have some access to wealth and power in the new Iraq. Most surprisingly, they turned out to despise al-Qaeda in Iraq as much as they despised us, but Zarqawi and his thugs were willing to provide them with arms and money. I pointed this out to Gen. George Casey, the former top U.S. commander in Iraq, when he visited my prison in the summer of 2006. He did not respond.

Perhaps he should have. It turns out that my team was right to think that many disgruntled Sunnis could be peeled away from Zarqawi. A year later, Gen. David Petraeus helped boost the so-called Anbar Awakening, in which tens of thousands of Sunnis turned against al-Qaeda in Iraq and signed up with U.S. forces, cutting violence in the country dramatically.
Balloon Juice blog presents Alexander's column with a revealing juxtaposition from Andrew McCarthy defending torture:
Superior force and discipline are not enough against this adversary. We need intelligence. Intelligence is the single asset that stands between the terrorist and scores — if not more — of slaughtered civilians. Between the terrorist and murdered American military personnel. In the war on terror, as in no war before it, intelligence will be the difference between victory and defeat. . . . [T]here are certain circumstances in which high-level al Qaeda operatives are captured in the throes of plotting massive strikes. There are certain circumstances in which such a terrorist might be able to tell us, right now, where bin Laden is, or Zarqawi, Zawahiri, and other leaders who are themselves weapons of mass destruction because they have the wherewithal to command massive strikes.
Alexander and McCarthy actually agree on an important point; it is intelligence that will win counter-insurgency. But they disagree, not only how how to obtain intelligence, but, at a much deeper level, on what intelligence really is.

For the sake of argument, I will grant McCarthy and other defenders of torture a point and assume that torture is, in fact, the quickest and easiest way to get the information they want. But the type of intelligence McCarthy and others like him discuss is revealing; it is narrowly military. What type of attack are you planning? Where is your weapons cache? Where are the EID's hidden? Where can I find your leader? Granted, all this information is important and worth knowing, but it is purely tactical. It may thwart a few attacks and win a few battles, but it is not how counter insurgencies or great wars of ideas are won.

Contrast this with what Alexander learns by building rapport; fighters' backgrounds, their motives, their quarrels and internal disputes, their differences, and what really makes them tick. This is strategic information, the sort of knowledge that defeats insurgencies, builds alliances, and wins wars of ideas. It is the sort of information that can not only win a war, but build a peace. And torture is worthless for gaining this sort of complex, sophisticated information.

I don't know Matthew Alexander's real name or where to find him. But I hope the Obama Administration finds him and gives him a major role in retraining our interrogation teams. Maybe, just maybe, he can help us win in Afghanistan.

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Toture and the "Slow Fuse"

I have no illusion that my most recent post will satisfy defenders of torture. The more honest ones, at least, acknowledge that the "ticking bomb" is most unlikely and merely serves as the thin end of the wedge. The basis view of torture proponents is that torture is necessary in some cases short of a true ticking bomb, and we should therefore legalize it so as to avoid elaborate subterfuges in which we do what is necessary while pretending not to.

Charles Krauthammer proposes, after presenting a ticking bomb case to prove sometimes torture is allowed, "However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information). And once you've established the principle, to paraphrase George Bernard Shaw, all that's left to haggle about is the price."

Former CIA agent Reuel Marc Gerech offers a more plausible scenario, "[S]uppose . . . soldiers capture members of Al Qaeda and their computers, and learn that the group has advanced plans for striking American and European targets, but we don’t know specifically where or when." Reuel's argument is that torture will be used in a case like that, whether we admit it or not, so we are better off legalizing torture so we can control it instead of outsourcing torture to an Arab ally.

Krauthammer proposes to allow torture without restraint in true "ticking bomb" emergencies. In case of "the slower-fuse high-level terrorist," he would allow a handful of trained specialists to use inhumane techniques with approval of the Cabinet or some sort of torture warrant. "The principle would be that the level of inhumanity of the measures used (moral honesty is essential here--we would be using measures that are by definition inhumane) would be proportional to the need and value of the information. Interrogators would be constrained to use the least inhumane treatment necessary relative to the magnitude and imminence of the evil being prevented and the importance of the knowledge being obtained."

So, having admitted the thin end of the wedge by acknowledging necessity (in the legal sense) as an affirmative defense to torture, how do I respond to arguments like this? Essentially, by standing by the basic underlying principles of legal necessity.

Yes, it is possible to construct a hypothetical scenario that would justify torture. It is easier to develop a hypothetical to justify most other crimes such as breaking and entering (the cabin in a blizzard), arson (burning down a house to stop a forest fire), escape from prison (fire, flood, earthquake, death threats, etc), or theft (Katrina). Does that mean we should drop the concept of crime on principle and limit ourselves to haggling over the price? No, it merely means that necessity can be an affirmative defense to a wide range of crimes, including torture. But the threshold of necessity is a hell of a lot higher for torture than for anything else.

What about the argument that since torture is bound to happen in some cases, we should legalize it so we can at least regulate it? That argument gets made a lot in the cases of drugs, prostitution, pornography, gambling and the like. But please note that these are all "victimless" (or perhaps more accurately, self-victimizing) crimes. The bound-to-happen-anyway argument is not one that gets made in the case of crimes involving a victim. Yes, murder, rape, theft, vandalism, etc. are undoubtedly bound to happen despite the best that law enforcement can do. But that is no argument for legalizing any of them. Nor is it an acceptable argument in the case of torture.

Finally, and most critically, what about the argument that torture is necessary? What about the "slower fuse," as Krauthammer calls it, the evidence of a terrorist plot, without quite enough information to thwart it? Yes, admittedly, torture becomes extremely tempting in cases like this. But the temptation must be resisted. If anything can justify torture, it is the legal principle of necessity: no other alternative exists. In this case, there are still alternatives. The bare fact that a terrorist plot has been partially compromised may be enough to persuade members to abandon it. The capture of leaders directing the plot behind the scenes may leave the terrorists in the field rudderless. And granting that these possibilities are nothing we would want to bet our safety on, once the government has partial information, there are any number of ways besides torture to shake the terrorist tree and see what fruit falls out.

Terrorist plans are fragile. When even partially discovered, they can be disrupted. Admittedly, terrorists are easier to thwart than defeat. It is better to capture a terrorist cell and put it out of action permanently than to thwart its plans and leave the terrorists free to fight another day. But then again, there is no guarantee that even with torture we would get enough detail to capture every conspirator.

People like Gerech and Krauthammer illustrate very plainly the temptations of torture. But these temptations must be resisted. The defense of necessity must be narrowly applied, lest it license general lawlessness. An absolute ban on torture, with necessity as an affirmative defense, just as it is with other crimes, and a lot of ingenuity in finding alternatives -- these are how we can defeat the terrorists without losing our soul.

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The Things You Learn in Law School!

The standard challenge advocates of torture always offer to opponents is the ticking bomb scenario and hypotheticals like this: "If we had credible information regarding an ongoing al Qaeda plot to detonate a nuclear weapon in the continental United States, and we had just taken into custody an al Qaeda militant who was in a position to know where and when the attack was to occur but who was refusing to cooperate, are you saying we would need to let thousands of Americans die rather than harm a hair on the terrorist's head in an effort to extract the information that might save them?"

The standard answer from torture opponents from John McCain to Arne Langsetmo is that anyone on trial for torture in that extremely unlikely event can plead extenuating circumstances. This rarely satisfies torture proponents. They argue that such an answer is condoning law breaking, that it is much better to have a system of "torture warrants" so we can preserve the rule of law and maintain proper checks and balances.

Up until now, my best answer to that has always that (as Arne says) extreme hypotheticals make for bad law, that the law cannot foresee all possible contingencies, that the prospect of a ticking bomb is too remote to be worth writing into the law, that loopholes of that sort have a way of growing, and that I can think of no better check on the use of torture than the prospect of prosecution. But thanks to law school, I can now offer another answer. Condoning law breaking in extreme, highly unusual cases is not some radical departure from long-accepted principles of the rule of law. Rather, common law has long accepted necessity as an affirmative defense to any crime but homicide.

First to the matter of affirmative defense. As everyone knows, at common law, the defendant is presumed innocent unless proven guilty beyond reasonable doubt. This means that the law presumes the defendant did not commit the crime. In order to overcome this presumption, the prosecution must present evidence that the defendant did commit the crime, and must prove every element of the crime beyond reasonable doubt. A defendant who casts reasonable doubt on the evidence, or on any element of the crime, must be acquitted. In an affirmative defense, the defendant does not seriously dispute that he committed the crime, but rather argues that there was some justification (or excuse) for his actions that the law does not presume. The defendant may argue that he was insane, that he acted in self defense, that he was coerced, that he acted out of necessity, and so forth. Once it is proven that the defendant committed the crime, the law does not presume any of these affirmative defenses. Rather, the defendant must present evidence that the affirmative defenses are true. He may also be required to establish the truth of such a defense by a preponderance of the evidence (i.e., that it is more likely than not).

At common law, the elements of the necessity defense are (1) the defendant acted to prevent a significant evil, (2) the harm prevented was greater than the harm caused, and (3) there was no other alternative. The defense of necessity may be used in a wide range of situations. A fire fighter may destroy a house to prevent the spread of a wildfire. A lost hiker caught in a blizzard may break into a cabin. An inmate may escape a prison during fire or flood. A diabetic stranded in New Orleans during Katrina may steal insulin from a pharmacy. And so forth. The law does not try to foresee every possible scenario in which what would other wise be a crime could be justified by a severe enough necessity. Rather, it makes necessity a general defense and lets circumstances determine when it applies.

Thus a ticking bomb torturer may establish necessity by proving that (1) he acted to prevent a significant evil (the ubiquitous nuclear bomb over Los Angeles should rate), (2) the harm prevented was greater than the harm caused (any advocate of torture would assure you that was true), and (3) there was no other alternative. That last one can be tricky. The law, for instance, would excuse a Katrina looter stealing a life-saving drug in a medical emergency. It might be more skeptical of stealing food. After all, help was on the way, and you can live without eating for a few days. (A jury might be more sympathetic). So a torturer pleading necessity would have to meet the high hurdle of no other alternative. The law does not want to encourage otherwise criminal acts by making the defense of necessity too easy. The requirements are stringent, for torture as for any other crime, as they should be.

Our would-be torturer may run into a few other problems in pleading necessity. Traditionally, necessity has been accepted as a defense only when caused by the forces of nature, not by any man-made emergency. But that distinction is weakening. If necessity justifies destroying a house to prevent the spread of a fire, why should it matter whether the fire's origin was natural or arson? If an inmate may escape in case of fire or flood, why not death threats from other inmates, if the authorities will not protect him? I know of no case in which the defense of necessity has been applied to torture in a ticking bomb case, but the principles are the same. If necessity has not been used as a defense to torture maybe it is, after all, because such cases are extremely rare.

The other problem is that the defense of necessity may be denied by statute. Usually, this means that the legislature says that necessity shall not be a defense in a specific instance. It is my understanding that anti-torture laws have a generic no-excuses provision. Even so, a nuclear bomb in Los Angeles might overcome even a no-excuse clause.

In short, contrary to what torture advocates may imply, there is nothing new, radical, or dangerous about allowing necessity as an affirmative defense to a wide range of crimes. If necessity is difficult to establish, that is because we do not wish to encourage law breaking in any but the most dire circumstances. That should be especially so for a crime as heinous as torture.

Next: Why this post is unlikely to satisfy torture advocates.

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