November 07, 2005
I DON'T KNOW WHETHER I AGREE with the McCain bill completely -- I'm against torture, but torture consists in applying electrodes to people's testicles, not "mocking their religion," wrapping them in Israeli flags, or frightening them with fake menstrual blood, and the McCain bill may be read as forbidding those non-torture activitities. They might be a bad idea, for a variety of reasons, but they're not torture, and one of the reasons the "torture" issue has gotten less traction than it might have is that too many people have blown their credibility by conflating things they don't like with things that are of a different order entirely -- and by letting their desire to bash Bush, or to distance themselves from him, become all too obvious.
But I think that it's Congress's role to define this sort of thing, which means legislation. The President may have this power in the first instance when Congress doesn't act (I think the area falls in what's known as "Jackson Category Two" after Justice Jackson's Youngstown concurrence), but Congress ought to act once there's time, and there's certainly time now. There was, in fact, time before the 2002 and 2004 elections. Having Congress act also forces members of Congress to take responsibility -- both for what behavior they approve, and for what behavior they forbid. That's a good thing.
But regardless of what rules Congress adopts, I'm certainly against the Cheney proposal to exempt the CIA.
First of all, if this sort of thing is too wrong for Americans to do, it's too wrong for any Americans to do, period. Right? Second of all, if we are going to trust any agency with such extraordinary powers, surely it shouldn't be the CIA, which has established, repeatedly, that it's not to be trusted, either in terms of competence or in terms of, well, trustworthiness. I'd sooner entrust the power to the District of Columbia parking enforcement people. At least they're respected for their zeal.
Earlier thoughts here, here, and, from 2001, here.
UPDATE: J.D. Johannes thinks I'm wrong:
I think we are making a huge tactical mistake on the torture issue.
I think sadism, intentional infliction of pain for the sake of amusing the perpetrator, should be a felony/courtmartial offense.
Torture may not be the most effective interrogation technique, but the threat of it can be very, very effective.
If terrorists know for a fact they will never ever have to face physical pain, discomfort or cognitive disruption through humiliation and capricious situations, they are less likely to give up the information needed to prosecute the war.
Unlike most journalists and policy makers, I have looked into the eyes of real life terrorists. One was a member of the Green Battalion. The Green Battalion is known for their propensity to saw people's heads off.
A person who is that deranged, is not going to break under the threat of confinement and mere questioning.
To break a person like that, you need to break their mind through the creation of an arbitrary and capricious world where the possibility of things getting much, much worse is always a possibility in their mind.
If the terrorists know exactly how far we can go, there will be a fixed point, a limit, and the ability to create an arbitrary and capricious world is reduced.
There are no guaranteed costless decisions here.