A Sane and Intelligent Debate on Interrogation Policies and Torture?

by Julian Ku

Is that even possible these days? It seems not, but the Federalist Society is sure doing a nice job in lining up Andrew McCarthy, Scott Horton, Douglas Kmiec, David Luban, Bart DePalma and Steve Vladeck to debate the recent release of the CIA interrogation memos and their content.  No one has yet denounced the other in ad hominem attacks and there is even some thoughtful debate going on there.  What a concept!

http://opiniojuris.org/2009/04/28/a-sane-and-intelligent-debate-on-interrogation-policies-and-torture/

20 Responses

  1. I don’t know that it’s all that intelligent. The writers are all repeating the same points on each side, over and over again, and then talking past each other, by and large.

    You will note, if you read the posts, that no one concedes anything that they were unwilling to concede before the “debate” began. Everyone has staked out a position on the underlying questions already. The issue is what to do now.

    More commentary on the underlying questions isn’t sane and intelligent debate. It’s just more of the same. And because we have sharply divergent views of those underlying questions, we have sharply divergent views of what to do now.

    It is, in other words, intractable.

  2. I disagree in some measure with dmv above. I would not expect such a discussion to prompt the interlocutors to abandon strongly held convictions or well-worn arguments, at most we may find them conceding this or that small point, and thus, to that extent, there is indeed an intractable quality to such affairs. Nonetheless, I found the exchange illuminating insofar as there are specific claims and arguments addressed, especially by DePalma and Luban, but not only them. Discussions such as this do serve to clarify presuppositions, assumptions and premises, even if none of the parties (or members of the audience, for that matter) is “converted” at the culmination of the process. That alone should suffice to accord value to this kind of dialogue. It’s important to keep in mind that there are a number of dialogue forms (see the work of the Canadian philosopher Douglas Walton on this) and while persuasion may be the goal of some, it is not essential to all dialogue types: sometimes the provision of information and knowledge suffice to make them meaningful.

    This reader looks forward to the continuation of the discussion.

  3. I recognize this might be a little provocative but may I ask why it is that it is fine that only a bunch of white guys get to sit around and talk about this stuff at the Federalist Society meeting?  No women, no minorities.  No Muslim-Americans.  What about adding a little color to these meetings?  I mean we have Yoo and Gonzales in this.  I wonder if anyone is bringing up the National Security Court pitch again.
    Best,
    Ben

  4. Patrick:

    I don’t think that the measure of sane and intelligent debate is whether someone changes their position or concedes away their argument.

    “Discussions such as this do serve to clarify presuppositions, assumptions and premises. . . .”

    The problem is that nothing new is being said. I’m beginning to suspect that this “debate” is an avoidance technique. Let’s talk some more about it before we decide what, if anything, we should do. Let’s assemble a conference. Let’s have some law reviews devote a couple of issues to the problem.

    Debating is fine. But why don’t we, while this discussion is going on, start investigating what happened, when, involving whom, where, and why? Let’s start looking for all the facts, so that we can lay them out in public and see what to do, then. We know there are more memos, more documents. Let’s see what we can learn.

  5. Ben:

    I didn’t think your question was provocative. I think it’s a good question.

  6. dmv,

    Obviously, something new is being said, which was my point. My response was to your specific comments regarding the discussion at hand, which claimed 1) The writers are all repeating the same points on each side, over and over again, and then talking past each other, by and large. That, simply, is not true. 2) You will note, if you read the posts, that no one concedes anything that they were unwilling to concede before the “debate” began. Everyone has staked out a position on the underlying questions already. My response indicated that this was not a fair or accurate characterization of what is occurring here and that the lack of “concession” is in fact irrelevant. 3) You said: More commentary on the underlying questions isn’t sane and intelligent debate. It’s just more of the same. And I explained in precisesly what manner we might, on the contrary, view it as a sane, intelligent and helpful discussion (which, in any case, has not ended).
    Now your raise another criticism: the debate as “avoidance technique,” and then proceed to contradict that very claim in what follows. As the parties involved in this debate are not the parties in a position to perform an actual criminal investigation, etc., your comment is beside the point, for their debate in no way precludes the relevant parties from doing the things you suggest, namely, “investigating what happened, when, involving whom, where, and why?” (although the work of people like Luban certainly makes that task a bit easier). Indeed, you state, “why don’t we, while this discussion is going on, start investigating what happened….” In other words, their debate in no way contradicts, impedes, or forecloses the possibility of an investigation and hence is not, in effect, an “avoidance techinique,” although it does serve the purposes I cited above and is therefore immune to your original criticism.

  7. Patrick:

    (1) What new has been said?

    (2) Yes, you are right. Politicians act only on principle and from their own internal sense of what ought to be done. They never respond to external pressure. They never gauge what the mood of a particular community might be before deciding to act. They are worlds unto themselves, completely isolated and distant from everyone else.

    (3) Some involved in the on-going “debate” begin from the position that we should let bygones be bygones and move on, not investigate, not learn what happened. The discussion has largely centered on whether people ought to be investigated and/or prosecuted. But you’re completely correct. A vocal segment of the commentariat loudly shouting that investigation would be irresponsible and damaging to national security and un-American!!1!111! has no effect on anything the government, run by politicians, does.

    It is amusing to me, though, how impotent and irrelevant intellectuals, lawyers, and others engaged in public debate are in your (apparent) view of the world.

  8. It is no longer time for something new to be said.  It is time for something new to be done: criminal prosecution of the high-level civilians and military generals who put in place the torture policy.
    Best,
    Ben

  9. Ben,

    With all due respect, that sounds more like sloganeering than a thoughtful response. Again, saying something “new” in no way precludes or crowds out the desirability or pursuit of criminal prosecution, nor does it in any way reduce or detract from the possibility of its occurrence. Consider, for example, the comparatively novel argument recently made by John Parry: that the “war on terror” since 9/11 did not fundamentally alter our nation’s approach to or legal understanding of what Luban calls a “torture culture.” Parry’s article suggests that

    …torture may be compatible with American values in practice and with the legal system we have constructed to serve those values. [….] Put another way, many fear that the revelation of abuses committed in the war on terror put the United States at risk of becoming a torture nation. This article explores the ways in which the United States is already a torture nation and suggests that being a torture nation could be as important a part of the U.S. legal and political system as the ban on torture. [….] Before September 11, ideas of the rule of law, legitimate government conduct, and sovereign power–not to mention notions of decency–had already evolved to make room for the kinds of practices that are routine in police facilities, and in maximum security and supermax prisons. That is to say, the facilities, rules, and practices that exploded into public view at Abu Grhraib and Guantanamo [one is reminded here are not so very different from those that have operated and continue to operate on a much larger scale within the United States. Seen in this way, the conclusion beckons that the appropriate descriptive narrative for torture and abuse in the war on terror is less one of disjuncture and more one of continuity with the rule of law as a domestic practice.

    By way of illustration,  we might recall the direct connection between the practice of torture (and/or cruel, inhuman or degrading treatment) and the behavior of prison guards and officials in our prison (‘correctional’) system.  The State Correctional Institution at Greene (SCI Greene) in the hamlet of Waynesburg, Pennsylvania was the site of a prisoner-abuse scandal in 1998 that received comparatively little attention. But, writes Sasha Abramsky in American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment (2007),

    In 2004, as the macabre images and reports from Baghdad’s Abu Ghraib prison hit the headlines, Waynesburg again found itself in an unwelcome spotlight. For it soon emerged that army reservist Charles Graner, the man implicated most directly in coordinating the violence at the cellblock level in Abu Ghraib, was, in his civilian incarnation, a correctional officer at SCI Greene. Like Graner, most guards at SCI Greene had previously served in the military, employed by the Department of Corrections as part of a preferential hiring process for veterans that turned Pennsylvania’s new prisons, like the new prisons throughout much of the country, into virtual preserves for retired military personnel. In the years after 9/11, dozens of SCI Green staffers were reactivated into National Guard and Army Reserve units and sent to Iraq and Afghanistan.

    But of course torture and cruel, inhuman and degrading practices have long been part of our prison system, as Parry makes plain.
    Parry’s argument is not a normative one and although it may not be entirely novel, it is fairly new and deserves careful consideration. I can’t for the life of me fathom how such consideration, or even acceptance of its conclusion, in any way impedes enthusiasm for the “criminal prosecution of the high-level civilians and military generals who put in place the torture policy.”

  10. Erratum: in the second para. above, the following should have been deleted: “[one is reminded here”

  11. Patrick,
    Thanks for your response.  I recognize that actually formally calling for prosecution in U.S. domestic courts of U.S. high-level civilians and military generals for torture and cruel inhuman and degrading treatment might appear to some as sloganeering and not sufficiently thoughtful in this erudite space.  Yet, I think it is important to emphasize precisely because the concept of such elites facing a judge seems peculiarly repugnant to those who one day have the ambition possibly to be in such high spaces.  I have been watching said elites waffle for nigh on 5 years.
    I recognize that several articles along the line of “we always did this” are emerging in the article you noted and I believe in the Yale Law Journal recently.
    That we always did this or do this domestically, did not make it acceptable then and now.  That we act like barbarians with our prisoners merely means that we are less civilized then we wish to pose.

    I am sure you are aware of the adage that you can judge a country by the quality of its prisons.  That our prisons are abominable places is a subject about which many persons have been fighting to change for a number of years. 

    That we countenance such abominations such as the prevalence of prison rape etc is not a testament to us being OK,  but rather to the fact that we have awful things to clean up in our backyard.  With the highest prison population in the world, it is a problem of enormous proportions that – once again – our political classes at state and federal level do nothing about because there is no money/prestige/or votes in it.  Treating prisoners with decency I recognize is anathema to many in America, but it is a test of our humanity.

    Parry’s article or others that are stimulating are essentially helping persons normalize what is fundamentally (at least from a human rights perspective) aberrant behavior.  We had done this before for centuries during slavery.  Slavery was an abomination then even if normalized for those who were slaveowners and those who took their tea with the sugar from domestic and caribbean plantation systems in the quaint salons of Boston in the early 1800’s.  It is normalized in the grant to start Harvard Law School being given with funds that gathered from the sale of the grantors slaves in Antigua (Royall) and silence is kept on this peculiar provenance until about fifteen years ago when the reparations movement started looking into the history of all these august institutions of the American landscape.

    So the point is that I do not cede to efforts to normalize profoundly aberrant behavior – domestically or internationally – to the extent that I can.  I have little faith in the political classes being capable of coming to grips with very difficult issues.  But, I do have faith that power responds to power.  So by doing what each of us can to assert power against those who would rather “look the other way”, we force that power to yield.  So it was in the civil rights movement (segregation was certainly some aberrant behavior that was normalized) and so it is in each corner of how America acts in a dysfunctional manner.

    If we insist, they will prosecute.

    I further repeat the point of “why do white guys” only get selected by the Federalist Society to speak on this topic.  That is part of the normalizing that I find another aspect of America that is aberrant especially with the large number of minorities and women who are serving in the armed forces defending the ideals of this country.  One view I have heard about the torture scandal is that the clique of people who put all this together were “frat boys with no memory”, inbred and out of touch with American greatness.

    Best,
    Ben

  12. Ben,

    You’ve absolutely misunderstood and thus mischaracterized the position of both myself and Parry. First, his is not at all a normative argument: that we have behaved like this in no way is proffered as an excuse or justification that we should behave like this. I myself have said not a few times around the legal blogosphere that I’m in favor of criminal prosecution for the architects of the torture policy and those who carried out such policy. Parry obviously would like us to overcome our collective self-deception about how our torture practices are somehow aberrant vis-a-vis our history, but it’s fairly clear that he does not believe that history is something we should be proud of or use to rationalize existing practices: quite the contrary. Your inference is tantamount to saying, for instance, that Darius Rejali rationalized torture in his magisterial historical and sociological study of the topic, Torture and Democracy (2007)!

    As to what goes on in our prisons, I have several times used the legal blogosphere to talk about the fairly neglected fact of widespread prison rape and abuse of those incarcerated and spoke to the subject in general when I posted my bibliography for criminal law, punishment and prisons at the Ratio Juris blog. And that is one reason I included Lorna Rhodes’ book, Total Confinement: Madness and Reason in the Maximum Security Prison (2004), in my bibliography on torture, also at the Ratio Juris blog.

    Speaking for both me and Parry: we are not in any manner whatsoever involved in “efforts to normalize profoundly aberrant behavior – domestically or internationally,” quite the contrary, we’re interested in documenting, exposing, and, ultimately, eliminating such behavior, for you to insinuate otherwise is quite disturbing to me, especially because I find myself so frequently in agreement with what you have to say. 

    I will continue to advocate for prosecution, as have Brian Tamanaha and Kevin Jon Heller, both of whom have fairly expressed how I feel on such matters in their posts on the subject here and at Balkinization. 

    And you can repeat ad nauseum the point about “‘why do white guys’ only get selected by the Federalist Society to speak on this topic,” but you’re preaching to the choir in my case and your comments would better be directed to those responsible for the practice. I’ve nowhere defended or apologized or excused or countenanced the practice….

  13. I just made a lengthy reply to Ben’s post above: can someone at OJ locate it and post it for me? It seems to have disappeared. If it can’t be found I’ll write it again, as Ben has absolutely mischaracterized my views, as well as those of Parry.

  14. Ben,

    First, what I was referring to sloganeering was not the call for criminal prosecution per se, which I’ve long supported and argued for throughout the legal blogosphere, but the remark in toto as a response to what I wrote, and in particular the claim that “It is no longer time for something new to be said,” as if that, as I said above, somehow precludes, or crowds out, or rules out, the call for criminal prosecution of those who were the political and legal architects of torture, as well as those who carried out the practices designed by the powers-that-be. So, you’ve yet to explain to us how the former, namely, saying something “new,” is indissolubly connected in a negative fashion to the latter, namely, the formal call for criminal prosecution.

    Secondly, I was quite surprised that you failed to make an important distinction, explicitly made by Parry in his paper but also one fundamental to the point at hand, that is, the distinction (which, although not absolute, is no less important) between the descriptive, and the normative (and ‘the prescriptive’ for that matter as well). Parry’s paper, is an enterprise of the former sort, in other words, he endeavors to explain how the “torture culture” (Luban) had longstanding and deeper roots than most individuals, across the political spectrum, have heretofore acknowledged. It’s a colossal act of collective self-deception or denial to insist otherwise. Recognition of this historical claim in no way implies an acceptance of, or suggests the unadvoidability or necessity of, or rationalizes the practice of torture, nor does it in any way imply that things will always be this way or that they should be this way. Indeed, such an historically descriptive narrative is perfectly compatible with the call for criminally prosecuting those responsible for the latest incarnation of this “torture culture.” Again, the historical description in no way rules out the normative argument concerning the patent illegality of the torture regime. We might in fact use such historical knowledge to demonstrate the need to once and for all transcend our history, as we did in the case of slavery, and to a large extent with civil rights. 

    You write: That we always did this or do this domestically, did not make it acceptable then and now.  That we act like barbarians with our prisoners merely means that we are less civilized then we wish to pose.

    Who claimed otherwise? Certainly neither me nor Parry, and it is irresponsible to claim or insinuate that we are doing just that. Darius Rejali’s magisterial Torture and Democracy (2007) provides an historical and sociological analysis of torture that is in most respects descriptive, that hardly commits him to penning an apologia for torture, indeed, he does not do this, but he helps us appreciate the historical continuities and sociological dimensions of our current practices in a manner that hardly lessens their moral repugnance or criminal nature.

    In my bibliography for torture posted at the Ratio Juris blog I purposely included Lorna Rhodes’ book, Total Confinement: Madness and Reason in the Maximum Security Prison (2004), to draw out the connection between what takes place in our criminal justice system and what has occurred in the war on terror. Others have made this connection more explicit and direct. For instance, in American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment (2007), Sasha Abramsky writes,
    In 2004, as the macabre images and reports from Baghdad’s Abu Ghraib prison hit the headlines, Waynesburg again found itself in an unwelcome spotlight. For it soon emerged that army reservist Charles Graner, the man implicated most directly in coordinating the violence at the cellblock level in Abu Ghraib, was, in his civilian incarnation, a correctional officer at SCI Greene. Like Graner, most guards at SCI Greene had previously served in the military, employed by the Department of Corrections as part of a preferential hiring process for veterans that turned Pennsylvania’s new prisons, like the new prisons throughout much of the country, into virtual preserves for retired military personnel. In the years after 9/11, dozens of SCI Green staffers were reactivated into National Guard and Army Reserve units and sent to Iraq and Afghanistan.
     
    Does citing this connection mean Abramsky countenances the abuse of prisoners? Hardly. Does the fact that I mention it mean or imply I countenance such abuse? Again, hardly. Indeed, we mention it to connect the dots, and the regnant assumption is that torture, as well as cruel, inhuman and degrading treatment are morally abhorrent and illegal, wherever they are found: in “black sites” or “correctional institutions” or anywhere else.  In other words, neither me, nor Parry, nor Abramsky, argue that two egregious wrongs make for a right, that somehow citing things like prison rape amounts to an endorsement of torture! I’m utterly at a loss as to how or why you would want to attribute such a position to either myself or Parry. Indeed, I’ve spoken to the comparative neglect of prison rape several times in the legal blogosphere and the unacceptable treatment of prisoners generally in the introduction to my bibiography for “criminal law, punishment and prisons,” also posted at Ratio Juris. At this point, I suppose I’m more than a little irritated that I’m compelled to defend my bona fides on this score.

    Therefore, and to repeat, Parry in no way is aiding and abetting an enterprise that enables or encourages “persons [to] normalize what is fundamentally (at least from a human rights perspective) aberrant behavior.” To claim otherwise is tantamount to utter confusion as to the difference between the descriptive and the normative. 

    ” I do not cede to efforts to normalize profoundly aberrant behavior – domestically or internationally – to the extent that I can.”—What was this remark in response to? Again, neither me nor Parry were ceding to such efforts and I would appreciate it if you fully acknowledge this fact. 

    Finally, the point regarding “’why do white guys’ only get selected by the Federalist Society to speak on this topic,” is simply preaching to the choir. Why not address your point to those responsible for this lamentable state of affairs? It was not my doing and I did not rationalize or excuse it.

  15. OK, I re-wrote my response, and once more it does not show up.

  16. Please send it to me and I will be happy to try and post it for you.
    Best,
    Ben

  17. Patrick:

    Both of your responses are now up. They just got auto-flagged for moderation because of the links.  Sorry about the delay.

  18. Thanks Ben: both the first post I wrote and the second one now appear, hence the repetition, although I prefer the second to supersede the first. [It’s having links in one’s comment, it seems, that delays or prevents their appearance.]

    All good wishes,
    Patrick

  19. Patrick,

    I apologize to you if you or anyone else considered my post as an attack on Parry or you personally.

    The point I am trying to make is that a descriptive work on some of these topics is useful to me particularly when it breaks new ground for me as did Rejail’s work.

    A descriptive that gives some “American” context worries me because it seems to me there is a tendency in my country to say “oh, since we did this already here, what is the problem?” or “Gosh, I didn’t know.” in situations where it strains credulity to believe that is a legitimate reaction.  Yet, such a reaction is seen and my worry is that giving “American” context has a somatizing effect because vast numbers of people here have been willing to put up with/acquiesce in lots of horrendous things in this country.  That willingness has been notwithstanding efforts of many – including yourself – to bring attention to some of these uncomfortable dark places in our country.

    As I read the posts, my impression was that the posts could be interpreted as normalizing bad things – whatever your intention in writing them.  That is how they hit me and that is why I took the time to make a response.

    As to calling out race and gender issues, racial and gender preferences that appear to inure to the benefit of white American males in the national security space is simply something that is not discussed in these erudite spaces. After the umpteenth time seeing panels without women or minorities in this arena, I thought it appropriate to highlight something that may not be perceived by all.  My effort is to open up the discussion in this space because clearly those who were controlling and dominating it the past 8 years seriously failed each of us and America in taking us down this path.  That those who failed us were a rainbow coalition is of no comfort to me, but it does suggest that those who get to speak in opposition should also be recognized as a rainbow coalition.

    Best,
    Ben

  20. Ben,

    Re: I apologize to you if you or anyone else considered my post as an attack on Parry or you personally.

    As I said, what disturbed me was the mischaracterization of my (and Parry’s) views, including the drawing of untenable inferences not at all warranted by the posts themselves (adhering to a minimalist construal of the hermeneutic ‘principle of charity’ would have been useful here). I did not see your comments as an abusive ad hominem attack, i.e., an attack on me personally, even if I was taken aback by an inability to understand what I said and referenced.  I’m still dumbfounded as to how you could interpret what I wrote as part of a larger endeavor at “normalizing bad things,” as nothing I’ve written here or elsewhere should have led you to draw such an inference: the resort to such a “bad faith” presumption is wholly without warrant (if you think otherwise, I’d be pleased to look at the evidence you’ve garnered). 

    If we want to explore the reasons why people acquiesce to acts of despicable and troubling illegal behavior, why they turn a blind eye to horrendous things in our history, then we need to look at the literature in psychology and social psychology having to do with self-deception, states of denial, debilitating biases and heuristics, euphemism and propaganda, “social filters,” and so forth and so on. Decrying descriptive historical narration (either in the ‘American context’ or elsewhere) as such is not at all availing.

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