As per Conor’s very able post, Jonah Goldberg has replied to my torture post. I’ve just put up a response to this at The Corner, and given that this conversation is also going on here, I’ll put it here as well.
Thanks for the thoughtful comments on the post.
I would put it to you that if there is a burden of proof for defenders of these practices to define “what works” there is also a burden on those complaining of torture to define torture.
I didn’t “complain of torture”, and I don’t believe that the claims I made in my post require me to define torture in the rough sense that I think you mean here – that is, to answer the question of whether things like waterboarding are torture. Let me explain why.
I’ll start by defining terms and establishing some terminology. Purely for the purpose of labeling, I’ll take the list of what I assume all parties to the debate would agree is torture (e.g., bamboo under the fingernails, beating a prisoner with a club until he has brain damage, etc.) and call this set of techniques, collectively, Torture 1. Purely for the purpose of labeling, I’ll take the list of what I understand to be considered torture by some but not by others (e.g., waterboarding, “walling”, etc.) and call this set of techniques, collectively, Torture 2. In a rigorous discussion, we would make a complete list for each and fine-grain each item on each list down to physically-defined action-steps (e.g., waterboarding is so many ounces of water delivered through a cloth of this description in such and so manner for no more than this many seconds up to this many times per week, etc.), but I assume this description is sufficient for a blog discussion.
I think that the question of “What is torture?” can be usefully simplified, again for the purposes of a blog discussion, to the question “Is Torture 2 really torture?”. As you noted, I did not take a position on this in my post. This was purposeful. I think this is an important question, but I have not done the necessary work to enable me to hold an informed opinion on it. At a minimum, there are numerous technical questions that would be required to form such an opinion (e.g., “What are the long-term psychological effects of waterboarding?”, “Are psychological effects relevant to the legal governing definition of torture?”, etc.) that I haven’t studied. But I don’t think that one has to answer the question of whether or not Torture 2 is “really” torture in order to draw the conclusions that I did in my post.
I think I made two key claims in that post: (1) When judging the purely instrumental effectiveness of torture we need to consider its strategic rather than merely tactical impacts (I defined these in the post), and (2) The burden of proof should be on those who propose to change the long-time U.S. practice of not managing systematic torture as a matter of policy. I think each of these is true even if we consider only the techniques labeled Torture 2.
Let me take them one at a time.
When judging the purely instrumental effectiveness of torture we need to consider its strategic rather than merely tactical impacts. Technically, accepting this statement doesn’t require me to define torture in any way, since this is logically true when considering any action from dropping an atomic bomb to brushing your teeth. However, in order for one to accept that it is a practical, rather than merely theoretical, requirement, I believe that he must accept that it is reasonable to believe that the non-immediate consequences are potentially significant. Consider Torture 2. Do you dispute that the non-immediate consequences of these specific practices comprising Torture 2 are potentially significant? I think that the fact that they have already created a gigantic controversy is prima facie evidence that they are. And I don’t think that the argument that it is the awareness of these actions that creates the problem changes this conclusion, since even if one intended to keep them secret, there is always the realistic possibility that they will become known (once again, proven recently by example). So unless I’m missing something, I think that this first statement should be accepted, and with practical rather than merely theoretical significance, even if we’re only talking about Torture 2. I don’t really see this as in any way controversial (though obviously, identifying, dimensioning and weighing the importance of these potential non-immediate impacts and coming to a conclusion about net benefits can be very controversial).
The burden of proof should be on those who propose to change the long-time U.S. practice of not managing systematic torture as a matter of policy. I will state as an assertion of empirical fact (subject to correction) that prior to the GWOT the federal government of the United States of America has not previously had a formal, legal system for administering Torture 2 to captured combatants for the purpose of eliciting information in the modern era. (Note that this does not mean that ad hoc extralegal Torture 2 activities, not to mention Torture 1 activities, have not been conducted by American troops in this period. I assume that both have been done by every army in every war in history.) All of our primary adversaries (defined as Nazi Germany, WWII-era Japan, and the Soviet Union) have conducted Torture 2 (again, not to mention Torture 1, and lots of other horrible activities) systematically as a matter of policy. We have defeated each of our primary adversaries.
So, we have a settled policy of not conducting Torture 2. At a minimum, restraining ourselves from doing this has not prevented us from defeating prior fearsome adversaries that are willing to do it. We shouldn’t assume that prior government leaders were idiots, or somehow didn’t understand that they were giving up a tactical advantage by foregoing Torture 2, and we should therefore accord some weight to their opinions – especially since they were the guys who managed to win all those wars. All of this does not imply that we must not change our policy, but it does seem to me that those who argue that we should change it need to demonstrate why we should change.
So my argument about the burden of proof does not rely on any assertion that I make about a specific list of practices comprising Torture 2 passing some test for being “really” torture, but instead relies on the assertion that these specific practices have not been conducted systematically as a matter of policy in the modern United States. I am looking to tradition, settled practice and the wisdom of our forebears for guidance in a difficult situation. Among other things, this strikes me as the obviously conservative approach.
You then go on to make the point that maybe my assertion of empirical fact is incorrect. In essence, that we have been doing these kinds of things, but simply kept them secret (and you also raise the more speculative question of whether if we could keep such activities secret, whether or nor we have done so in the past, that we might avoid many of the long-term costs of Torture 1 and/or Torture 2).
First, I think it is important to segregate the cases of “legal, but secret” from extralegal. I skipped all three years of law school, but I’ll use a layman’s working definition of legal in this context as something like “authorized and funded by Congress and undertaken by the Executive in accordance with the powers granted under the Constitution”. By illustrative example, “the OSS boys” being “funded and overseen by Congress with a defined chain of command running up through the Executive branch to the President, and having a defined set of procedures and bureaucratic oversight for Torture 2 vetted by lawyers, for which equipment and facilities are provided by the relevant authority” would be something that I mean by legal. On the other hand, “a small team of OSS agents that has just parachuted into occupied France holds a gun to the head of a German soldier and demands to know where the fuel depot is, and then fails to report what they did once they get back to base” is what I mean by extralegal. I assume that lots of extralegal Torture 2 has happened throughout modern American history. The statement that there might have been some secret, systematic and legal Torture 2 infrastructure in the modern United States is, by the definition of “secret”, a statement that can never be falsified – you can’t prove a negative – but I’m pretty skeptical about the capacity of the U.S. government to keep secrets like that over a long period of time. As both you and I have said, however, I would welcome more information on whether such a secret, legal infrastructure was deployed by our government in modern history.