John Yoo, who wrote the official memo justifying the use of torture, still thinks that there are situations when torture is acceptable. “Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don’t see how it can be reasonable to have an absolute prohibition on torture when you don’t have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?”

I think that’s a serious question, and I’m not fully satisfied with any of the five answers that occur to me:

1) There is a very old tradition of granting rights to prisoners. In war, that tradition goes back at least to the days of chivalry and is often seen as a mark of honor. In criminal law, the tradition goes back to Magna Carta with its rights of habeas corpus, trial by jury, and so on. But a tradition, by itself, is not an argument. Maybe the distinction between prisoners and others was arbitrary, or maybe it is obsolete in an age of strategic bombing and weapons of mass destruction.

2) Arguably, since we have unlimited power over prisoners, there must be checks on our power. Those checks include due process for criminal suspects and the Geneva Convention for prisoners of war. But note that we also have unlimited power over the people who are sitting below the bomb bays of our airplanes. Certain restrictions govern who may be bombed, but these rules are much weaker than due process. In fact, we can usually assume when we drop bombs that non-combatants (and non-criminals) will be injured, maimed, and killed.

3) Perhaps being tortured or held indefinitely is a special nightmare, more fundamentally dehumanizing than being blown to bits. Then John Yoo’s premise is wrong; torturing one person is worse than killing ten. Perhaps–but I worry that our ability to imagine one person’s torture exceeds our capacity to imagine the clean and rapid deaths of hundreds or thousands of people. Even our own demise is hard to conceive. That means that we may make an arbitrary distinction between prisoners and people caught on a battlefield.

4) There is a set of workable institutions for safeguarding limited rights for prisoners. These include courts, judges, defense attorneys, writs, treaties, and the Red Cross. These institutions work because there is time, once someone has been captured, to go through procedures and call on neutral parties. We have no workable institutions for safeguarding the rights of people on the battlefield. There just isn’t a neutral judge who can be summoned to decide whether it is acceptable to open the bomb bays. That seems true enough, but we have to wonder whether our institutions are adequate and appropriate. Maybe if the English nobility had been worried about civilian casualties as well as their own fates in the king’s dungeons, they would have created institutions to protect rights on the battlefield (not merely in the courtroom).

5) We have a good reason to safeguard the rights of captives: our own government can take us prisoner. If we lose habeas corpus for suspected terrorists, we can lose it for ourselves. That is certainly a concern, but it doesn’t excuse acts of war on foreign lands that may cause individuals to suffer worse than they would under torture. A pacifist replies: War is never acceptable. But what about in 1940? Or 1861? Or 1776? If war is ever justified, then we will sometimes kill people. And if killing is worse than torturing, why should we ban the latter–especially if it proves an efficient means of preventing casualties?

For the good of the country, Congress should probably block any increase in the number of troops sent to Iraq. The most effective way to do that would be to add an amendment or rider to a military appropriations bill, because the president must sign that legislation. From a partisan political standpoint, however, the Democrats are probably better off objecting to the “surge” without actually blocking it with a rider. If they stop the president from fighting the war as he wants, he can blame them for the ultimate debacle in Iraq. If they use the “power of the purse” to stop the surge, their critics can say that they failed to fund our soldiers. On the other hand, if they allow the president to proceed with his surge over their objections, the blame will rest with him.

I’m for principle and national interests rather than partisan advantage and the avoidance of blame. However, I doubt that the Democrats have the votes to pass an anti-surge amendment in both houses of Congress. Therefore, principle will not prevail. Would the following idea work instead? Congress would pass the appropriation that the president requests (to fund our troops fully) and then debate a separate bill to prevent any additional Americans from being sent to Iraq. Of course, the president would veto that bill–if it passed–and would then implement the surge. Yet there would be several advantages to passing separate legislation. It would show that responsibility for the surge rested with the president. Arguably, Congress would discharge its duty by debating and (I hope) voting against troop increases. And Democrats from strongly anti-war districts would have an opportunity to cast a clear vote.

I”m not sure why Senator Kennedy introduced a bill “to prohibit the use of funds for an escalation of United States forces in Iraq above the numbers existing as of January 9, 2007.” I would much prefer legislation that avoided any mention of “funds” and simply said, “To prohibit the escalation of United States forces.” I suppose Senator Kennedy wants to stay on safer constitutional ground by invoking the congressional power of the purse. He may wish to avoid the argument that the president alone may decide how to conduct a war. But that argument is questionable. In any case, the president will veto Kennedy’s bill unless it becomes an amendment to an appropriations bill. It might as well be written so it says what it should: No surge.

What should Americans who oppose the current war say to men and women who have served in Iraq, or to their families and close friends? I think the standard response is to sympathize with them, on the ground that our civilian leaders made a colossal mistake by sending them into danger and hardship with a foolish plan and insufficient justification. In a word, our service-people are victims.

That attitude must strike almost all troops–even those who oppose the decision to invade Iraq–as patronizing. If the whole war is nothing but a mistake, and our troops are mere victims, then everything they strive to accomplish from day to day is pointless. It doesn’t matter whether they do their job excellently or perform it negligently. If such pity prevails on the left, we may face a long period of division and backlash.

I suggest an alternative view. In my opinion, the war was unjustified and its conduct was atrocious. However, it is crucial that the United States possess a lethal, efficient, professional, volunteer military under civilian control. Sometimes our elected leaders (with perhaps some help from the top brass) will make big mistakes in deciding how to use lethal force. Their mistakes may be strategic or moral; they may be sins of commission (e.g., Iraq) or of omission (e.g., Rwanda). The proper response is always to criticize our leaders and to offer persuasive alternatives in elections–something that the Democrats failed to do in 2004.

Meanwhile, by doing the best possible job under the circumstances, the professional military serves our democracy. Our officers and enlisted people learn; they develop experience. They save one another’s lives. Through their daily choices, they can mitigate the harms caused by the elected leaders to whom they must defer.

Isn’t there a point at which a person in uniform must nonviolently resist his or her government? Shouldn’t an officer’s conscience obligate him or her to resign? The answer is yes, but only in extreme circumstances. Hitler’s General Staff should have resigned, even if that meant death to them personally. But there is a fundamental, categorical, moral difference between invading Poland and invading Iraq; between Auschwitz and Abu Ghraib. While I oppose the Iraq war–more clearly in hindsight than ex ante–it wasn’t an infamous act. It reflected poor judgment, worse execution, and a questionable mix of motivations, but not a giant war crime.

In any case, I would set the bar for civil disobedience rather high for uniformed officers in an all-volunteer military that serves a democracy. Otherwise, every time the civilian leadership makes a moral mistake, the officer corps must all quit and we will have to start over. We need them to develop experience, to look out for their troops, to obey military ethics, and to improve the institution of the military.

In considering whether to use civil disobedience–for example, whether to resign a commission–one must consider the consequences, all things considered. It is not clear to me that resignations would shorten this war, especially since the public has already awakened and is demanding peace. (By the way, a military resignation need not be accepted.)

When the United States is judged for its decision to invade Iraq, it will not count in our favor that our soldiers learned from their experience there. We have no right to hone our own institutions at the expense of another people. But the blame must fall on our elected officials, on us for electing and re-electing them, and on the political opposition for its poor leadership. Our soldiers who do the best possible job under the circumstances may take genuine pride in their service; and we owe them a full measure of respect and gratitude.

I’ve been corresponding with a reader who is a lieutenant in the New York City Police Department as well as a doctoral candidate at CUNY. Brandon del Pozo also holds an MPA from Harvard and an MA from John Jay. The following is a guest post by him concerning torture and combat:

The principal, recurring, line of argument against torture is that it is different from acts of harm and killing in combat and law enforcement in a way that makes the very framework of justification for these acts inadequate for justifying torture as well. This inadequacy is not meant to be one of degree; the argument is not that torture is too extreme a form of injuring and killing to be permitted. It is instead that torture is crucially different in a way that makes the conceptual extension of these justifications inappropriate in the first place. Given what torture is, justifications for how we act in war and self-defense cannot be invoked to do the work of describing the morality of torture. People who wish to talk about the torture must therefore do so without invoking justifications for combat injuring and killing, which are already thought to be arguments that define the outer limits of how we are permitted to treat other people. Unless a person can talk about the justification for torture in a different way that accurately accounts for its special nature, it must be placed beyond the pale.

This approach fails because it does not appreciate just what we seek to do when we make war against people. Henry Shue, and more recently David Sussman, describe at length the way torture violates the person in an extremely sinister way. They talk about the way torture makes a person feel, the vulnerabilities it exploits, and the way in which it turns the very substance of personhood against itself. It uses a person?s extension in the physical world to enslave her consciousness, devolving her personhood to a state where it is no more endowed with dignity and rational agency than the most primitive sentient being, all the while subjected to the most severe forms of distress, fear and agony that sentience permits. Sussman argues that ?through the combination of captivity, restraint, and pain, the physical and social bases of rational agency are actively turned against such agency itself… [a] perversion of the most basic human relations.? Making clear that in his view this cannot be justified by our present understanding of when and how we may cause harm, he concludes that ?whether such objections could ever be overcome by legitimate military or punitive interests is a question that waits upon more comprehensive understandings of the morality of punishment, warfare, and self-defense.?

The description of torture above is accurate. The problem, however, is that in both the case of Shue and Sussman it is simply presumed that this description alone, when done well, is enough to make the case that torture is different from combat not by degree but by nature. In order to make the best argument possible, it would be necessary to do at least two things. The first would be to accurately describe what torture is. The second would be to affirmatively show that combat is not the same in nature as what has been described as torture, and that it does not differ only by degree. Prior work has done a good job of the former, but seems to have ignored the latter, as if describing torture has made the prima facie case that it is different from combat by its nature.

Continue reading →

(En route to Chicago for an American Bar Association meeting.) Last week, a leaked National Intelligence Estimate made headlines by asserting that the Iraq war was a ?cause c?l?bre? for jihadists. That topic has since been knocked out of the newspapers by a congressional sex scandal, tragedy in Amish country, and other riveting stories. However, I?ll weigh in belatedly and say that I don?t believe the ?cause c?l?bre? argument was ever a good one to make against the war. First of all, it?s a fancy French phrase. Besides, we sometimes should and must do things that rile up the other side. If (contrary to fact), the invasion of Iraq had been wise, legal, and in the best interests of that nation, it would still have given terrorists a ?cause c?l?bre.?

For me, a sufficient argument against the war is that it violates one of the few substantial elements of international law. Members of the United Nations simply may not invade one another without the explicit authorization of the Security Council. However, this argument is not politically very potent, because it seems legalistic and likely to uphold UN interests against those of the US.

Thus I would emphasize a different argument, which (as Henry Kissinger once said on another topic) has the ?additional merit of being true.? The invasion of Iraq was part of the war on terror, but it was a colossal strategic error in that war. It helped the jihadists by knocking off a hated secular dictatorship, under such conditions that fundamentalist movements would likely replace it. It put hundreds of thousands of mostly young Americans right into the Middle East where they were vulnerable to being attacked; more have died there than on 9/11. It created a profound dilemma: Winning the counter-insurgency would require deep and daily engagement with Iraqis, which would be extremely dangerous; whereas protecting US troops in Iraq would require separating them from the population, which would make it impossible for them to succeed. Above all, the invasion made the United State responsible for handling a violent struggle among Sunnis and Shiites, Arabs and Kurds, Arabs and Persians that we are poorly equipped to understand, let alone resolve. And if we fail, the consequences range from a massive loss of credibility, to terrible suffering, to the creation of a jihadist state at the head of the Persian Gulf.

In fact, one could say that there were only two ways for jihadists to achieve a strategic victory against the United States after 9/11: by obtaining and using weapons of mass destruction on US soil, or by luring us into the middle of a civil war in the Mideast. We gave them the latter victory and must devoutly hope to avoid the former. That we also gave terrorist recruiters a ?cause c?l?bre? is almost beside the point.