Actually, the Answer is Rather Easy

Slate's blog on legal issues.
April 5 2008 2:00 PM

Actually, the Answer is Rather Easy

In his latest column , Ben alleges that although we can all agree that the Yoo memo, and the 2002-04 torture regime it engendered and immunized, were way out of bounds and that the subsequent national settlement about the rules for military interrogation is a good and salutary one, we are nonetheless ignoring the remaining question of what the CIA should be entitled to do:  "We have yet to decide as a society," Ben writes, "how the CIA should handle [alleged 'high value detainees'—with 'value' presumably determined not by what they've done, but by what they (might) know] in the future." 

Ben worries that this is a "wrenching" decision, one that "truly tests our core values."

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No, it doesn't. The question is easy, and we have already decided it, based upon those "core values." Indeed, we basically decided it more than 200 years ago, codified it in the Lieber Code in 1863 (which specified that "military necessity" does "not admit of cruelty") and spent many long years persuading the rest of the world to go along with it: All coercion of POWs is prohibited. And as for non-POWs—so-called "unlawful combatants"—torture and cruel treatment are categorically prohibited. So is other conduct that "shocks the conscience." That's what the CAT and Common Article 3 say. And we cannot deviate from those very well-established norms without repudiating—that is to say, breaching—those treaties , thereby opening up a Pandora's Box with respect to "deviations" that might be adopted by all the other nations of the world. (Proponents of a new interrogation regime tend to ignore that if the U.S. in effect scoffs at Geneva and the Torture Convention, that will have profound effects with respect to treaty compliance by other nations, too, some of which might strike the "balance" in favor of even more cruelty than the Bush Administration has promoted.) 

That is to say: What was good enough for Washington, Lincoln, Roosevelt, and Truman is good enough for us now. In every war we've ever fought, and all those we will fight in the future, it would be of great strategic and tactical value to be able to coerce important information from those we detain through the use of violence and threats of violence. (And all other belligerent nations think likewise.) Yet we have long concluded that the costs of allowing such techniques—by all belligerents—far exceed the benefits. Not to mention that they're simply immoral.

The historical settlement against all cruel treatment and threats of violence is more or less codified in the Army Field Manual that once again governs military interrogations. (If anything, the Field Manual authorizes some techniques that might be prohibited by treaty in many applications, such as "false flag" [when used as a threat] and "pride and ego down," broadly conceived.)  Ben claims that the Democratic bill that would bind the CIA to the Army Field Manual, too, is "ill-conceived" and that there is "considerable space between what the field manual permits and what the law might reasonably tolerate."  But he doesn't provide any arguments in support of these conclusions, and they are, as far as I know, simply mistaken.

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