Returning to the Spinozist, pseudo-philosphical, tyranny-bashing roots of what was not originally an econo-blog, Ultimi Barbarorum must indict the otherwise incisive Clive Crook of the FT for what is an astonishing op-ed in yesterday’s FT; Stupid Cartesianship beckons. There is moreover a question whether we may need to go further. What do you think, Bento? Are you still there?
Crook does not believe there should be any investigations into torture. Those that argue that there should be investigations make 2 mistakes, he thinks: firstly they fail to see that waterboarding may indeed work as a way of gaining information, and secondly, that it may not be illegal. He mischaracterises the seriousness of the pro-investigation argument.
“In [my] view”, Crook writes, “torture might sometimes work. CIA officers and senior intelligence officials have said that “harsh interrogation” did yield important information.” He doesn’t give any examples, and so far I don’t think anyone has. Certainly, were I to be tortured I would spill the beans as quickly as possible on any secret I might try otherwise to keep; however, one might attain the same result by other means (in my case, asking nicely, offering me money) which don’t incur the same costs, be they moral, reputational or otherwise. Al Qaida fixer Abu Zubaida is said by his interrogators to have given up more secrets though non violent suasion than under the subsequent torture.
Moreover, while I don’t doubt important information may be yielded under torture, Crook fails to see that hostile interrogation through torture surely incurs greater costs than the alternatives. From a purely practical point of view, it creates a much higher percentage of false positives, stuff the victim made up in order to make the pain stop. Extra analytical resources are needed to sort the information, and extra costs in research to check the remaining leads. You need extra torture sessions to check the same story. It’s hard to see how torture as a way of sourcing information can be very efficient against the alternatives, a conclusion the UK, Israel, and even highly tyrannical regimes like the Soviet Union came to. In the latter case, they found it much more interesting to use torture as a way of extracting false confessions, which is clear from a basic reading of the history of show trials in communist countries in the middle years of the last century. That should tell Clive Crook something.
Secondly, is waterboarding actually illegal? “Congress should make waterboarding a crime,” says Crook, “and it has had many chances before and since 9/11 to do so. The fact is, it has chosen not to.” Well, it may not need to; the fact that such convoluted and apparently erroneous legal opinions were needed to justify waterboarding and other techniques in the White House argues that there was some sense beforehand that it might be slightly dodgy. Precedent exists: the US executed Japanese soldiers for it after WW2. Moreover, I believe the US is a signatory to the UN Convention Against Torture, ratified by Congress, which is entertainingly precise:
For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. . .
- Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
- Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
- No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
- An order from a superior officer or a public authority may not be invoked as a justification of torture.
- No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. . .
That would be the Bush administration caught fairly bang to rights, then. It is probable that up until 2004-2005 Congress never passed a law against waterboarding because 1) no-one ever thought it was possible the US government would want to do it to anyone (just as no-one passed a law e.g. against feeding cats too much marmalade), and 2) it was covered by the convention above, and/or the US constitution.
I think opponents of torture investigations like Crook who use this argument misunderstand the nature of common (the basis for US and UK law), versus roman law. The latter is precise, laying out what is possible/impossible in great detail, the former is experiential, based on principle and tests. We do not need a law specifically banning waterboarding for it to be an offence. We need someone to be prosecuted for it to see whether it is illegal under US law or not, for it to go through the courts on appeal if need be, ultimately to the Supreme Court. Crook decently seems to worry about the consequence for the US’ standing in the world should any indicted torturers be acquitted. But this is not something we can decently worry about. The rule of law demands its test, for the dice to be thrown. And then we shall know where we are.
There are lots of other things wrong with Crook’s argument, including that it concentrates on waterboarding to the exclusion of more clear-cut forms of torture such as “wall slamming”, and finally, that arguing for prosecution against torture is a “furiously partisan project”. This last is firstly, plain wrong (I am a fricking Thatcherite hedge fund manager for chrissake, not a bed-wetting beardy-weirdy) but primarily a cowardly suggestion, implying that were one side or the other to argue fiercely against say, rape and pillage, it would be proper to find a compromise.
We can talk about this in the comments, if anyone is interested. But frankly I have to admit to a rather unpleasant sense of wonder that the FT, a UK newspaper staffed with many journalists I know personally should entertain this debate at all. I am astonished that these issues have to be discussed in the first place.
UPDATE: missed this — Tyler Cowen (HT Sullivan) opines on torture prosecutions, also understanding that this is a fit subject for an econo-blog. He’s against, worried that it would just prove the US actually likes to torture people, and somehow “lose the chunk of world opinion that Obama has been winning back”. Again, I think this misses the point, for reasons I write above. Then we’d know. And I don’t think sweeping torture under the rug is the courageous stand that will impress world opinion either.