Thursday, July 03, 2008

The Torture of Christopher Hitchens

This blog has spent a fair amount of time in the past considering the question of torture (a few of the posts can be found here, here, here, here, and here). I've gone back and forth on the issue, but, in brief, my position is this: Measures amounting to torture, if they are to be used at all, must only be used in rare and specific cases and always in accordance with existing laws. But, for all my theoretical exploration of the issue I have, thankfully, no practical experience on which to base my argument.

But Christopher Hitchens does. Recently, Hitch allowed himself to be waterboarded by the people who train US Special Forces soldiers to resist torture at the hands of the enemy. The experience is, by all acounts, horrifying. Over at Vanity Fair, Hitchens has written an article about the experience, and there is a video as well. Both are well worth your time. In Hitchens' opinion, "if waterboarding does not constitute torture, then there is no such thing as torture."

I don't know quite what to make of the torture of Hitchens. Watching the video is truly shocking. He lasts all of 10 seconds (more or less) before ending the demonstration in sheer terror, and confesses to now having panic attacks and nightmares. However, while I may not have experienced waterboarding, I was under no naive conceptions about its nature. Nor does that change the theoretic logic with which I understand the dilemma. Of course, interrogation measures like waterboarding are extreme, terrifying, and torturous. They are, and should be, beyond the pale of all but the most extreme interrogations. If the country as a whole believes that there are absolutely no circumstances under which such techniques would be justified, then the techniques should be clearly and explicitly prohibited. Congress' refusal to explicitly ban waterboarding has left the door open for its use. While I do believe that the use of torture may, in very rare, unique, and controlled cases be justified, I also believe that the law must be followed.

The question of the use of torture is a difficult one to think clearly and rationally about. Hitchens manages to do so, even having undergone torture himself. As he notes (quoting a discussion he had with Malcolm Nance:

1. Waterboarding is a deliberate torture technique and has been prosecuted as such by our judicial arm when perpetrated by others.

2. If we allow it and justify it, we cannot complain if it is employed in the future by other regimes on captive U.S. citizens. It is a method of putting American prisoners in harm’s way.

3. It may be a means of extracting information, but it is also a means of extracting junk information. (Mr. Nance told me that he had heard of someone’s being compelled to confess that he was a hermaphrodite. I later had an awful twinge while wondering if I myself could have been “dunked” this far.) To put it briefly, even the C.I.A. sources for the Washington Post story on waterboarding conceded that the information they got out of Khalid Sheikh Mohammed was “not all of it reliable.” Just put a pencil line under that last phrase, or commit it to memory.

4. It opens a door that cannot be closed. Once you have posed the notorious “ticking bomb” question, and once you assume that you are in the right, what will you not do? Waterboarding not getting results fast enough? The terrorist’s clock still ticking? Well, then, bring on the thumbscrews and the pincers and the electrodes and the rack.

As I've noted in my posts linked above, some of these arguments I do not buy; others I have great sympathy with. This is not an easy discussion to have; even having it is likely to get one branded as a "torture sympathizer." But we must have it.


Bill Reidway said...

Seth, for stepping into this breach, I thank you. One of the more dangerous things we can do on this issue as Americans is simply leave it to the politicians - and in so doing disavow the responsibility we have for our government's policies and actions.

Although I don't always come out on the same side as Hitch, he can always be counted on for lucid prose and clear thinking; I shudder to imagine what kind of experience could reduce a mind like his to jelly, even for a moment.

Let me ask you this...leaving aside the appropriateness of the waterboarding tactic for a moment, I've always felt as though the attempts to conceal it it was the more damaging policy. Not just because you can't hide stuff like that forever so you're setting yourself up for double condemnation, but also because it undermines the very notion of self-government. On a topic like this, national security concerns and all, did the executive have the constitutional right to start this without Congressional approval?

Seth Weinberger said...

Excellent question, Bill. But it's not quite the right question. Clearly and unambiguously, the power to conduct interrogations of prisoners detained pursuant to military operations is under the purview of the commander-in-chief, which is, obviously, the president. The two AUMFs which authorized the wars in Afghanistan and Iraq, as well as the GWoT more broadly activated the president's war powers (as the USSC ruled in the Hamdi decision); thus, the president has the power to conduct interrogations.

The more appropriate question is whether waterboarding (or any other controversial interrogation method) is a legal means of interrogation that is available to the president. And there, the answer is still fairly clear. Until recently, Congress never forbade the president from using waterboarding to interrogate prisoners. When Congress passed the Military Commissions Act in October 2005, it chose to include language outlawing "humiliating and degrading" treatment of detainees. Such language was clearly intended to prohibit the use of torture; but Congress did not explicitly define what techniques were included in the broad definition. Thus, the designation of what was legal (coercive interrogation) and what was illegal (torture) was left up to the Bush Administration. Given that Congress was aware that the CIA was using waterboarding, it could have easily defined "humiliating or degrading" treatment to include waterboarding, or any other controversial technique it wished to prohibit. In December of last year, the House voted to ban waterboarding, and the Senate followed suit in Feb. 2008. Bush vetoed the bill in March and the House failed by 51 votes to overturn the veto, so, unless I'm mistaken, waterboarding is still legally available as a tool of interrogation.

So, as I read it, yes, the president was, and still is, allowed to use waterboarding as a tool of coercive interrogation. Whether waterboarding SHOULD be used is a different question.

Bill Reidway said...

Ok - I think what I missed is that Congress was aware of the waterboarding in 2005. So what you're saying is that since Congress had knowledge of the executive's methods, they were bound, if they opposed it, to explicitly list everything they wanted to prohibit. Otherwise it's the President's call.

I get the legal reasoning, but it still kind of seems like stacking the deck. Like if we weren't talking about waterboarding, we'd just be talking about some other thing.

It sucks, if the people concede that a public debate on these matters is just not practical - which it seems as though we have - just what standing do any of us have to bitch about what the President does or doesn't do?

Have a good one man.

Acumensch said...

Seth, thanks for writing this intellectually stimulating blog.

I wanted to chime in to mention that when I traveled throughout Europe last summer, in some of these Medieval torture museums were devices for "water torture" techniques, done in the same way as it is today. Given that these devices were considered hardly different by Medieval standards from the spiky, thorny, and really gory devices, it gave me the impression that Western Civilization hasn't progressed in this regard at all - we've only become more secretive about it.

Joseph La Sac