Simple Answers to Complex Questions

Slate's blog on legal issues.
April 7 2008 9:30 AM

Simple Answers to Complex Questions

Marty criticized Ben for arguing in a column that the rules governing CIA interrogation should be different from those governing the Army. Marty says that America's "core values," embodied in administrative regulations, statutes, and policies going back hundreds of years, reject any type of interrogation policy harsher than that now in place for the Army and that, in any event, treaties settle the matter. Ben responds that treaty law does allow for harsher interrogation techniques than those adopted by the Army. But the matter of core values remains.

The problem with Marty's argument is not just that the military law that was good enough for George Washington or Abraham Lincoln is no more likely to be appropriate for security challenges today than the environmental laws of those eras are for global warming. The problem goes deeper than that. At the risk again of being  Dr. Evil to Marty's Austin Powers, I should point out that Marty's version of history—according to which our core values had been established by the time of the Civil War, if not the Revolutionary War, and have settled all controversies about security policy since then—is altogether too sunny.  Though not usually a matter of formal policy at the presidential level, American governments have tolerated and often advanced torture, the killing of civilians and destruction of civilian property, and other atrocities in the pursuit of ends deemed necessary to the national interest. The Civil War produced the Lieber Code but also Sherman's scorched-earth campaign in Georgia and South Carolina; I believe that torture was also common in prison camps on both sides.  American forces also committed atrocities in the wars against Indian tribes and in the lengthy engagement in the Philippines, where Americans used torture and other aggressive tactics to subdue an insurgency. In World War II, U.S. forces fire-bombed civilians in Europe, committed atrocities against Japanese soldiers, and fire- and nuclear-bombed Japanese cities. The Korean War was also a brutal affair. Vietnam featured torture, assassination programs, and massacres. Throughout the entire Cold War, American military policy was to exterminate tens of millions of Russians and people living in other countries if the Soviet government launched a first strike. Meanwhile, the CIA was also very busy with, among other things, apparently developing psychological torture techniques and disseminating them to foreign security agencies, and the U.S. government supported foreign governments that committed atrocities against their populations, even providing assistance to their security agencies.

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This is not to deny that we have values embodied in laws and treaty obligations; it's just that these values have always yielded to national security when political leaders believed that the stakes were high enough. America's traditional approach has been to use the rhetoric of moral absolutism but to act pragmatically, while the rest of the world gazes at our hypocrisy with slack-jawed astonishment. If history shows anything, it is that American governments balance values and security needs, that the calculus is being constantly revised, and that if it is not done explicitly, it will be done in the shadows.

Treaties don't settle the matter, either. Treaties are only as good as the underlying logic of reciprocity on which they depend. The best case for refusing to extend law of war protections to al-Qaida never rested on the legalisms of the Bush Justice Department; it was that we could never expect this group to act in reciprocal fashion in its treatment of Americans. So whatever the right approach to al-Qaida as a matter of policy and morality, there is no reason to think that the standards in the Geneva Conventions are relevant. It is often said that if we violate the Geneva Conventions in our treatment of al-Qaida, other countries will violate the Geneva Conventions when at war with the United States, but there is no evidence for this claim. Reciprocity of this sort clearly does, sometimes, occur between two belligerents at war (the United States and Germany during World War II, for example), but no one has shown that a nation's treatment of enemy soldiers depends on how those soldiers' military acted in prior or independent wars with other nations. In any event, whatever the empirical validity of this conjecture, it is just one factor that enters the complex moral calculus that Ben wants us to undertake.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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