This is pretty long so I'll just go for the "Money quote" sections:
"The rodef defense would also apply to a true ticking bomb case – whose rarity, even non-existence, will be addressed below. The rodef principle might release an interrogator from liability if he were to resort to torture spontaneously in a moment in which he had probable cause to believe the prisoner before him was a perpetrator with knowledge that could save lives in immediate danger.
The rodef defense would seemingly not permit authorizing physically coercive techniques in advance or applying them across the board in a deliberate and routine way to detainees held over extended periods of time. It would not permit "torture" or "cruel, inhuman, and degrading treatment" to be anyone's training or job description in the military. It would not allow interrogators to get up in the morning anticipating a day of physical coercion for the sake of extracting as much information as possible from those in their custody, even if many of these detainees had once but were not currently posing a threat to American lives. Nor would it allow torture to be used as a punishment, reprisal, or intimidation tactic."
"In 1999, the Israeli General Security Services (G.S.S.) faced similar charges in a case brought before the Israeli Supreme Court, and categorically declared that physically coercive techniques are not authorized by Israeli law."
If the Israelis, who face daily far more potentials for terrorist attacks and indeed even acts of imminent terrorism which may threaten innocent lives, will categorically declare that torture or torture like techniques (if you're unwilling to declare what we did as actual torture) are wrong, unauthorized, and by implication, unnecessary, then why the hell did we think we needed it?
"The Israeli Supreme Court acknowledged that physical coercion was being used outside of "ticking bomb" conditions, and ruled that neither the government nor the security services could establish directives authorizing the use of physical coercion in advance, but only as an "ad hoc…improvisation" responding to an urgent moment at hand. They also ruled that the G.S.S. could not develop physical means of interrogation before the fact, but individual interrogators could resort to force in response to concrete situations of necessity, post factum.....
The defense might mitigate the penalty incurred by the investigator, but would not excuse the torture itself. The G.S.S. investigator, according to the Court's ruling, must conform to the same constrictions imposed on a police interrogator or ordinary citizen who would resort to the criminal law "necessity" defense when confronted with a situation of impending, serious harm."
- In other words, the public and criminal justice system would have to adjudicate to see if the use of violence on the part of the interrogator was warranted by the outcome of their efforts. But in most cases, it was not. Even in the presence of a supposed systematic method of determining which cases it should be used and which it could not be.
"Many of torture's success stories appear more tenuous upon further probing. While governments who employ torture tend to emphasize the large numbers of lives it has saved, few are ready with concrete particular examples, and many of these examples are themselves officially contested in terms of what was revealed during the actual interrogation. Most of the information extracted from Abdul Hakim Murad, for example, seems to have been obtained by tapping into files on his laptop, captured in his Manila apartment, rather than through his violent interrogation, which included inserting burning cigarettes into his ears." - In other words, we should not 1) rely on only the official government stories and sources that supposedly justify the torture being deployed and 2) it is highly improbable in most cases that only torture will produce the information we require in order to act to avert a potential crisis and tragedy.
"Extreme measures, like torture, preventive detention, and arbitrary arrest, typically win the battle but lose the larger war" - I should note that I keep requiring things to fit some sort of larger strategic sensibility rather than mere tactical success. Maybe it would help if more people in charge of our foreign policy measures thought along the same lines once in a while. This is why the shutdown of Guantanamo was so important and why the continued coercive and civil liberties abusing policy of "preventive detentions", even if the now infamous prison was shut down, was so upsetting. Such actions would need to serve some strategic purpose and not merely reduce the likelihood of violence from one individual actor and his immediate supporters.
"Finally, there is the argument that torture, even if it could in fact save our bodies, would in the meantime corrode our souls, as citizens of liberal democracies and as conscientious human beings.....Terrorism tends to menace democratic states most by weakening their own constitutional and ethical commitments." - Hmm. There's that curious idea that our ideals are powerful weapons that should not be abandoned at the first sign of danger and threat. If they really do "hate us for our freedom" as some would content themselves with as an explanation for terrorist acts, then why abandon that freedom as our identity? Why seek to comply with their demands by surrendering liberty for the illusion of security?
"As of 2003, the International Committee of the Red Cross estimated that between seventy to ninety percent of those held in Abu Ghraib were there "by mistake;" more recent official inquiries have dropped the estimate to two-thirds." - If the official (ie, governmental) tallies are at 2/3s, that does kind of throw some cold water on the claims that we're imprisoning only the worst of the worst, all of whom pose some imminent danger to American civilians. Even the government doesn't think so. "A tragic slippery slope seems invariably to slide from the "ticking bomb" justification to taxi drivers and gas station attendants, in the wrong place at the wrong time." - Ahh yes. But we all know how dangerous those cab drivers named Achmed are to the American way of life. Right?
It gets worse when the OLC memos attempting to justify torture are examined. They weren't even accurate on the legal points (a point which was noted at the time of their release by dozens of lawyerly bloggers), somehow citing international legal precedents in the European Court and Israel as justifications when both were, in fact, clearly not.
It's not that hard to rely upon religious theology to craft a set of ethical boundaries (even if it does sometimes result in some strange rules to an outside observer of those ethics). But the real problem, I guess, seems to be that people are too often highly selective about which of those boundaries they feel apply to themselves and when, and too often ignore that the specialized circumstances that somehow might, but not with certainty, create a justification, are so rare and so inconsistent that crafting official rules upon them makes no legal or moral sense. We see this constantly when some random weird criminal act takes place, only it's so vague on its particulars that the person will get away with it. The aftershock is that politicians and advocates for hardline authoritarian visions of rules will seek to impose strict and sweeping laws which affect dozens of other circumstances which are (almost always) unrelated to the criminal and negligent moral actors of the rare and imprecise case. It makes little sense to set up the architecture to criminalize miscarriages in the wake of a faulty abortion that may have resulted in infanticide, just as it makes little sense to decriminalize torture ("enhanced interrogation") in the wake of a handful of cases where it is supposed that this torture somehow procured vital national security information faster and more reliably than other methods.
Also, it's hard to argue with an essay that terminates with a Karamazov reference.
"The Two Cultures" Lives on in Law School
1 hour ago