"But war, in a good cause, is not the greatest evil which a nation can suffer. War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war, is worse. When a people are used as mere human instruments for firing cannon or thrusting bayonets, in the service and for the selfish purposes of a master, such war degrades a people. A war to protect other human beings against tyrannical injustice – a war to give victory to their own ideas of right and good, and which is their own war, carried on for an honest purpose by their free choice – is often the means of their regeneration. A man who has nothing which he is willing to fight for, nothing which he cares more about than he does about his personal safety, is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself. As long as justice and injustice have not terminated their ever-renewing fight for ascendancy in the affairs of mankind, human beings must be willing, when need is, to do battle for the one against the other."

Saturday, May 23, 2009

On waterboarding

Yes, yes, I can already tell how excited you’re all getting about this, my first ‘serious’ post in a long time. Well, personally I’m not terribly excited about it myself. I’ve veered away from politics for awhile because I find 90% of what comes out of the Beltway these days depressing, and frankly I’ve been far busier overall this deployment and the time I used to devote to perusing the op-eds every day is a luxury I no longer have. I know this post will win me no new friends and probably piss off most of my old ones. In fact, some of you are probably thinking: haven’t you talked about this already, either here or in interminable back-and-forths with The Accidental Blogger a.k.a. the artist formerly known as Ammianus Marcellinus? You’re probably right; consider this a new afterword, incorporating previously unknown or undisclosed facts. Or consider it a waste of time on an issue in which virtually everyone has already made up their minds. Either way, I’m pressing on because I think it’s worth talking about, and that the current trend of false moral purity should not be allowed to destroy history and reason.

So, where to begin? Perhaps with a summary of the accusations against the Bush administration and its use of enhanced interrogation techniques (I’ll try to be as succinct and fair as I can). They run thus: we used waterboarding on a handful of captured terrorists. Our treatment of these individuals was illegal, violating the Constitution and Geneva Conventions; it damaged our standing in the world, created more terrorists than it stopped, and placed our troops in additional personal danger should they be captured; it produced no usable intelligence; and it was as reprehensible as war crimes committed by the Japanese, whom we in fact prosecuted and executed for precisely the same conduct. I will address each of these in turn.

I won’t pretend to be any kind of constitutional or legal scholar, but there are a few things to consider in the first argument. Most importantly, none of the three prisoners subjected to waterboarding are American citizens. The Constitution offers them no rights and nothing in that document requires the government to extend those privileges to prisoners of war. When it comes to Geneva Conventions, matters are a little murkier, but let me try to parse them. The Third Geneva Convention, which covers prisoners of war, defines precisely what a prisoner is and what treatment they are entitled to. Overlooked in the current controversy, however, are certain obligations that the captured have in their conduct prior to capture. The three were not parties to the Geneva Conventions, are not members of any group or nation that are signatories to it, and moreover, violate that clause which specifically discusses powers or group that are non-signatories; even if one belligerent is not a signatory, the other Power is obliged to extend the articles of the Convention to them, provided “the latter accepts and applies the provisions thereof”. KSM and his cohorts never accepted, and willfully flaunted, those laws of war. They wore no uniforms, did not carry arms openly, and disdained the normal ‘laws and customs’ of war in their operations. They purposefully targeted civilians (indeed, maximizing civilian casualties was their modus operandi) and treated their own prisoners (so long as they lived) brutally. Their prisoners never lived long, however, because they made no accommodation for their basic needs and preferred to saw their heads off for the world to see. Now, a clause exists which declares that there is no ‘intermediate status’ of prisoners: they are either combatants, covered under the Third Convention, or civilians, covered under the Fourth. However, even under the Fourth Convention, civilians are afforded protection so long as they do not take part in hostilities; once they do so, they are considered belligerents. However lawful or unlawful a combatant these three men may be, however, the Convention still allows them to be interned, interrogated, and prosecuted.

Despite all this – their disregard for the Conventions and their deliberate violation of the laws of war – the ‘Gitmo Three’ have been afforded unusually generous civil rights during their incarceration. They are interned in decent quarters and, as their ‘Gitmo guts’ might tell you, well fed and cared for. They have access to lawyers and probably have to turn litigators away at the door, since so many are eager to represent them. They are free to practice their religion, despite desiring the deaths of all those who don’t share their faith. At some point they will be tried, afforded a due process denied to Daniel Pearl and about 3,000 civilians on September 11th. They are no more exempt from interrogation than are American criminals. In short, they’ve been granted legal protections well outside the requirements of the Constitution and Geneva Conventions and which they and their movement have denied and violated well before terms like ‘Gitmo’ and ‘waterboarding’ became part of the global lexicon.

Next, the global repercussions of waterboarding these three. To be sure, revelation of this interrogation message inflamed the famous Muslim streets and brought all kinds of poo-pooing from various allies and non-allies. What American actions abroad, however, do not inflame the Muslim streets or generate poo-pooing from some quarter or another? Waterboarding pissed off the Muslim street; but then, so did the invasion of Iraq, the war against the Taliban, the presence of American troops in the Middle East, America’s support for Israel, America’s liberal society in general, Israel’s existence, and America’s existence (so did allegations of mishandling the Koran in Gitmo, but I don’t really count that because, as we found out, those allegations had the small flaw of being untrue). Now, in general, it’s always wise for a president to consider the global ripples of his actions before acting; however, if we made all of our economic, political, and national security decisions based on how they would play out on the Muslim street, we might as well nuke Israel ourselves. Imagine the goodwill that would generate on those perpetually inflamed streets. This is the same ‘street’ that saw people dancing and cheering as plane after plane exploded in flames on 9/11 and which considers suicide bombers ‘martyrs’ rather than the most barbaric and depraved of murderers. It seems to me that the Muslim street, not American policy, needs a values adjustment. Likewise, the criticisms of Russia and Venezuela ring hollow when they come from countries that routinely quash free speech, exile or execute political opponents, overtly or covertly fund and supply terrorist movements, and trample on the most basic civil rights of their citizens. Much has been made of the need for America to hold the moral high ground to retain leverage over less well-behaved states; that argument is rendered meaningless when those making it draw ridiculous comparisons between intelligence operatives trying to extract information that will prevent mass bloodshed and political leaders who simply assassinate journalists they don’t agree with. From recently declassified CIA memos, we’ve learned that Bush administration legal advisors gave a great deal of thought to what measures were acceptable, what weren’t, and the extent and circumstances under which they could be used. In the end, they agreed on a limited set of ‘enhanced’ methods, to be used only on high-value prisoners, and, at the end of the day, these prisoners could go back to their cells, keep building their Gitmo gut, talk to their lawyers, and fuel their radical hatred with passages from the Koran. Has Vladimir Putin given the same due process to the reporters he’s killed or foreign leaders he’s poisoned or made war on? Has Hugo Chavez agonized over the legal minutiae of shutting down critical radio stations or funding a drug-addled insurgency against one of his neighbors? No, and it’s foolish to think that not interrogating KSM and his friends would somehow make all the difference with these men.

As to the poo-pooing of our allies, this is a more serious issue, because collectively we operate under a similar set of values and greatly depend on each other for material assistance against terrorist groups. It’s worth noting, however, the different circumstances which we and our allies face. America is playing both offense and defense against terrorist groups actively pursuing another 9/11. Yet we have greater domestic freedom to do so because we do not have a restive – and growing – demographic of unassimilated radicals threatening violence at every perceived injustice. We do not have neighborhoods where women are afraid to travel without wearing burkas; our filmmakers are not murdered for making ‘insulting’ movies (were that the case, Bill Mahr’s Religulous would have gotten him killed a hundred times over); our newspapers and commentators are not browbeaten into fearful silence for publishing offensive cartoons and opinions. Despite porous borders and security regulations made impotent by political correctness, our ‘rear’ in this war is remarkable secure. The same cannot be said of Europe. Their criticism stems as much from their own fear of being seen as collaborators in outrageous behavior as from genuine moral outrage. In ten to twenty years, as their own populations shrink and that of the radicals grows, our allies may find themselves turning more and more to ‘enhanced’ techniques – and techniques beyond any we restricted ourselves to – to survive.

Regarding the additional dangers waterboarding has exposed our military to, I ask you: do you really think it would make a lick of difference to men like Osama bin Laden, KSM, or Zarqawi whether we waterboarded or simply asked questions nicely? Bin Laden murdered 3,000 Americans on September 11th, and hundreds of other innocent civilians in the years before when waterboarding, Gitmo, and numerous other perceived offenses hadn’t yet happened. KSM beheaded Daniel Pearl while shouting God’s goodness without ever being waterboarded. Zarqawi’s campaign of terror preceded most of today’s terrorist and liberal grievances as well. Why is it so hard to understand that while men like these offer a wealth of excuses for their actions, blaming American excesses and crimes for each new act of brutality they commit, it is our very existence and that of our civilization that offends them? Our existence is one grievance we can never redress, but it’s the only one they’re interested in. Every other excuse they offer is for the consumption of the good old Muslim street and pliant Westerners who so loathe their civilization already that they’ll believe every accusation, substantiated or not. We could live in a Leave It To Beaver nation, and it would not matter in the slightest to these butchers should they ever get a hold of me. The best way to prevent them from committing barbaric acts is to know what they know, denying them the opportunity to act.

Which leads us to the question: did waterboarding help us know what they knew? Did it prevent new acts of widescale bloodshed? Former vice president Dick Cheney and intelligence officials at the time say it did; the new administration says it didn’t. The only way to know for sure is to release the results of the interrogations and let the country decide. Everyone in the Beltway is after the ‘truth’; and since we’ve already informed al Qaeda of how we pulled knowledge from their operatives, we might as well be honest about the quality of that information. I, for one, would like to know whether we prevented other 9/11s we’d never dreamed of; if we didn’t, I will gladly denounce enhanced interrogation as a waste of time and resources. But we deserve to know.

Finally, one of the most scathing accusations in this debate is that our enhanced interrogations were no better than the brutalities inflicted by Japanese war criminals on hundreds of thousands of innocent civilians and legal prisoners of war. We tried and executed men for this after World War II, critics say; we are now no better than our enemies. This charge is perhaps the most damning of all; but it ignores many details and nuances of the historical record. First of all, Japanese “water torture” was not the waterboarding we know today. The CIA’s method involves placing the prisoner on an inclined board, covering his face with a cloth or cellophane barrier, and pouring water over the barrier to simulate drowning. Japanese water torture generally had no barrier: water was poured directly into the prisoner’s nose and mouth, literally drowning him. Variations included beating on the prisoner’s distended stomach after he’d ingested large amounts of water, or force-feeding dry rice to him and forcing water down his throat afterward, causing the rice to expand painfully in his stomach. Unlike the prisoners the CIA interrogated, these prisoners usually died or suffered severe physical damage. Unlike the CIA interrogations, the Japanese were not looking for information; this was entertainment. They sought to inflict pain as an end, not as a means to prevent greater bloodshed.

Perhaps these fairly crucial differences strike some as irrelevant. That would still mean that our government used methods we’d executed men for decades earlier. So, were Japanese officials convicted and executed simply for performing water torture? As it turns out, yes; but as one pundit put it, they were executed to the extent that Charles Manson received life in prison for trespassing. Such a simple interpretation leaves out the fact that these war criminals were condemned for many things, all of them worse than what KSM received. Here are some of the charges against Japanese officials who were merely imprisoned for their crimes:

  • Specifications: beating using among others hands, sword scabbard, saber belt, belt buckle, bamboo sticks, rifle butts; kicking; subjecting PWs to ju-jitsu; forcing PW to stand at attention for a long period of time, sometimes in cold weather without sufficient clothing and on one occasion, in the nude; throwing a bucket of ice cold water over PW in cold weather;water treatment which entailed forcing water down PWs throat and nostrils using among others a hose, tubes; picking up and throwing PW to the ground; banging head against a wall; raising and lowering a sword on a PWs neck in an effort to make him give information.
  • Specifications: beating, kicking, water torture, burning using wood, lighted cigarettes and burning pokers, forcing to stand/kneel in snow w/out adequate protection
  • Specification 1: That in or about July or August, 1943, the accused Yukio Asano, did willfully and unlawfully, brutally mistreat and torture Morris O. Killough, an American Prisoner of War, by beating and kicking him; by fastening him on a stretcher and pouring water up his nostrils.
  • Specification 2: That on or about 15 May, 1944, at Fukoka Prisoner of War Branch Camp Number 3, Kyushu, Japan, the accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O Cash and Munroe Dave Woodall, American Prisoners of War by beating and kicking them, by forcing water into their mouths and noses; and by pressing lighted cigarettes against their bodies.

As you can see, there’s a lot more to their conduct than waterboarding, and the Japanese notion of waterboarding was far more brutal than the CIA’s.

How about those war criminals actually executed for war crimes in World War II? Paul Begala recently claimed that America executed Japanese for precisely the same things the Bush administration did to KSM. That Japanese officials were executed is correct; seven were hung for war crimes, but it’s disingenuous to say that it was for waterboarding, when in fact the executions were for crimes far worse in scope and scale. The men hung included:

  • Sieshiro Itagaki – was responsible for providing food and medical care to POWs and civilian prisoners on various Indonesian islands. Thousands in his charged died due to malnutrition and lack of treatment.
  • Heitaro Kimura – violated the laws of war in forcing prisoners to do hazardous labor. Thousands died performing dangerous construction jobs. He also did nothing to prevent or punish atrocities inflicted by his troops against prisoners.
  • Iwane Matsui – commander of the Japanese forces who captured Nanking in 1937. His men killed over 100,000 civilians after the city’s capture, routinely torturing men and raping women before murdering them.
  • Koki Hirota – held office as Japan’s foreign minister during the sack of Nanking. He was well informed of the atrocities committed there, and received many protests from the international community, but did nothing to stop Matsui’s forces.

Waterboarding was not listed among these men’s crimes, and clearly what they did to deserve execution goes well beyond rough interrogation techniques.

This lays nothing to rest, I’m sure; but I think it’s all worth a little reflection before we decide that the previous administration, their intelligence officials, and the measures they took to prevent further mass-casualty attacks are little better than the 20th century’s worst murderers. I’m sorry that we made KSM and his friends uncomfortable; I’m more sorry that Daniel Pearl’s family will never see him again, that 3,000 American families have been deprived of their loved ones, and that thousands of other innocent people around the world have suffered greater pain and loss by al Qaeda’s actions than KSM ever will. And if the powers that be in Washington ever decide to tell us that waterboarding prevented another terrorist attack on American soil, all of us should be grateful.


The Accidental Blogger said...

We signed a treaty specifically making torture illegal in 1994, beyond the details of the Geneva Convention where these people would inevitably (as you yourself concede) fall under the category of combatants. So this means those actions are illegal-period. You can make a vague argument about Article 2 and the war powers of the President, but I think its a rather frightening thought to believe the executive can authorize torture at his discretion without any sort of binding law. This means, very literally, that the actions of the previous administration were illegal-period. Nothing that you have listed here serves to refute that. If the Bush administration wanted to conduct torture to obtain intelligence they could have gone through the necessary process of withdrawing from the treaty and enacting the appropriate legislation. They did no such thing. If, in the event of a "ticking time bomb" scenario, the President could even offer pardons for those who violated these laws in their frantic search for information.

However, this was not the choice made by the Bush administration. They chose to warp interpretations of the law to fit their desire to allow torture. They then proceeded to torture detainees in search of information. This was in violation of treaty obligations, in violation of the Geneva Convention and in violation of US law-period.

Until you can explain away these rather direct violations of law, you have no legal standing to defend the actions of the Bush administration. The fact that Jay Bybee, author of some of the memos in question, is a judge serving judgment on others is a travesty of justice. The Bush administration very clearly violated the law in their actions. I've been rather surprised at the full-throated defense of the law-breaking offered by the Republican party given that any serious investigation would undoubtedly lead to prosecution of a number of Bush administration officials for these violations. The Obama administration's desire to not dig through the past seemed to me to be about as good an outcome as could be hoped for by former Bush officials.

The Accidental Blogger said...

Now, as far as the moral and ethical justification of these actions, that is slightly less clear territory. I would just remark that most professionals involved in interrogation believe torture is ineffective. I would note that, while they were prosecuted for a variety of offenses, waterboarding was very clearly considered torture at the end of World War II.

And I would lastly add that comparisons between our actions and the actions of inhuman, vile terrorists are entirely irrelevant to this discussion. We are fighting against these deranged, violent individuals, in large part because we have established a belief in a more decent society. We do not summarily execute people by cutting off their heads on camera to be displayed to the world without cause. We do not intentionally mutilate civilians. We do not stone to death adulterers. Our opposition to these events is not a function of our opposition to Al Qaeda and their ilk, but a positive affirmation of the society that we believe in. We are more than opposition to a barbaric and cruel philosophy practiced by radical terrorists, we are a society that affirms the rights and value of the individual. We believe and promote human rights not simply because we feel that best serves our national interest, but because that is what we believe to be right. We oppose torture not simply because it is ineffective but because it represents a cruelty and inhumanity that we reject as being valid, no matter the justification, in the modern world.

I could easily argue with you that the idea of winning the War on Terror without changing the values of the Muslim street is purely folly (indeed, I'd love to know how that could happen), but we can't change those values through the application of force (either to countries or to individuals). But that's besides the larger point; we are a nation that abides by the rule of law. We are a nation that values human rights. Torturing anyone, even terrorists, represents the negation of both of these concepts. We're better than that.

Meghan said...

I made it through the 1st paragraph on this post! I should get a prize :)