President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
My thanks to John for writing what I think to be an instructive and informative answer to the issues that I raised on the question of how we conducted the war on terror. As he notes at the beginning, I made my remarks from the perspective of someone who thinks that a muscular American policy towards the terrorist threat is not only permissible but strictly necessary.
The hard question is what is the best way in which to take this on. In answering the question, I think that John is right to say that Al-Qaeda is not as a matter of law entitled to the benefits of the Geneva Conventions, or more precisely, that the case that they are is not easy to make. But the question here is whether it is wise for us to adopt something that is much closer to a tit-for-tat strategy in dealing with them, where my instinct is that it is not. I am not worried about how the Chinese will respond in the future, I am worried about the responses around the world and at home toward the United States for what we do. In this regard, I think it is a mistake to calibrate our responses to the behavior of our worst enemy. We should try to do better in this regard than they would ever think of doing, and indeed as best I can tell the recent moves at Guantanamo have followed that insight under both the Bush and the Obama Administrations. Far better that we are proud of what we do, than we try to hide and run from our decisions. Prudence here should dominate.
On the water boarding issue, the evidence continues to be in conflict. But it is not enough to say that we have used it on our own, given that the intensity of the practice is likely to differ across contexts. The Americans on whom the practice is used are likely to have a very different response to the overall situation. That said, as I mentioned, the question of whether torture is justified in some cases by its collateral benefits is a hard one to answer. The usual treaty response is that it is not, once we find out what it is. The Yoo response is to define it more narrowly than the statute will bear—‘organ failure’ is a lot narrower than ‘severe injury’— and then to admit the justification in the case of the top three leaders of Al-Qaeda is to make an important set of concessions to the insistent critics of the practice. What is so hard for me as an outsider to evaluate is the causal claim that the success in stemming terrorism is a direct result of this initiative or of any of the thousands of other steps that were taken to break the back of Al-Qaeda. My sense is that this claim is overblown, only if some of the greatest successes in recent years come long after the practice was largely abandoned, perhaps even from high level sources. So I regard this claim as perhaps tenable, but easily contestable as well.
I notice that John is indeed silent on my last point about how President Bush seriously erred in judgment with his campaign for expanded presidential power. All the information on this point is public, whether it deals with text or practice. In my view, the Bush administration lawyers were wrong on this question. I am not sure whether John thinks the same.
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May '11
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Thank you, Professor Epstein.
It seems the argument for this "enhanced interrogation" rests on a definition of torture that is newly developed and on necessity.
It's my understanding that we considered water boarding torture when the Japanese used it on Americans.
The necessity argument seems to be unsupported to me. It's really hard to claim what would have happened had we not used these techniques.
It's my opinion that we should treat prisoners as well as we can reasonably can, to encourage more enemy to surrender.
Dec '10
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Two Issues:
Doesn't giving non-treaty signatories the same benefits and protections as signatories undermine incentives to enter into treaties?
If we are to reject John's definition of torture then doesn't that mean we need to replace it with something else? What would your definition of torture be? What would be the harshest Enhanced Interrogation method allowable under that definition?
Apr '11
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
I thank both you gentlemen, Yoo and Epstein, for arguing this issue here. Both arguments prove to me what I have long believed: war is no place for lawyers. I believe the Geneva Conventions, and other "legal' constraints on war, have given us the kind of unequal warfare we know today as terrorism. Laws are applied to civilizations and to civilized acts: economics, contracts, private property, and so on. War is not and can never be a civilized act, and to pretend that it can be so is to place yourself at a distinct disadvantage. War should always be considered an existential threat.
I would like to hear what Victor Davis Hanson thinks about this subject since he is so thoroughly an expert on war, especially as it pertains to the West and its enemies.
Jun '10
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
But it is also much more precise. Organ failure is a lot closer to permanent damage than severe injury. But without precise definitions, we would eventually reach the point where solitary confinement is viewed as torture.
Feb '11
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Prof. Epstein, the question should not hinge on "the responses around the world and at home", but in the nature of the conflict. As Prof. Yoo pointed out, this is not a conventional war and our enemies are unlawful combatants who target civillians, therefore the collection and analysis of critical information is paramount.
If you have questions about our treatment of detainees I suggest Mark Thiessen's book.
Oct '10
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Not a lot of sympathy for Al Qaida here.
These people, the Islamist terrorists, deserve absolutely no humanitarian consideration whatsoever. Why in God's name would the United States place the niceties of international opinion above the lives and safety of the citizens of the US. If anything, it is a violation of the president's obligations under the Constitution. Being humane towards those who violate decency in targeting civilians by the thousands, while an "official" state of peace is in operation, is itself bordering on treason.
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
"I am not worried about how the Chinese will respond in the future, I am worried about the responses around the world and at home toward the United States for what we do. In this regard, I think it is a mistake to calibrate our responses to the behavior of our worst enemy."
With respect, I would prefer that we calibrate our responses to that which are necessary to protect the homeland from attack. In that regard, I prefer the simulated drowning of a terrorist (with a physician in attendance) to the mass incineration of an American city.
I know mine is a simplistic response, impervious to fine legal distinctions. The savages who flew passenger jets into skyscrapers were simplistic too. We can nuance ourselves right into another attack if we're not careful. Find the enemy and kill him. Do what needs to be done to accomplish that objective. Otherwise, be to prepared console surviving family members of the next attack that, well, at least none of the bad guys had water poured up his nose.
Edited on September 14, 2011 at 9:58pmOct '10
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Skyler: Thank you, Professor Epstein.
It seems the argument for this "enhanced interrogation" rests on a definition of torture that is newly developed and on necessity.
It's my understanding that we considered water boarding torture when the Japanese used it on Americans.
The necessity argument seems to be unsupported to me. It's really hard to claim what would have happened had we not used these techniques.
It's my opinion that we should treat prisoners as well as we can reasonably can, to encourage more enemy to surrender. · Sep 14 at 11:59am
The "surrender quotient" among Islamist terrorists is zero, unless you consider not self detonating after capture to be surrender. Being nice to this gang of murdering animals buys us nothing except the humiliation of not recognizing evil for what it is.
Jun '11
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Dave Carter: "I am not worried about how the Chinese will respond in the future, I am worried about the responses around the world and at home toward the United States for what we do. In this regard, I think it is a mistake to calibrate our responses to the behavior of our worst enemy."
With respect, I would prefer that we calibrate our responses to that which are necessary to protect the homeland from attack. In that regard, I prefer the simulated drowning of a terrorist (with a physician in attendance) to the mass incineration of an American city.
I know mine is a simplistic response, impervious to fine legal distinctions. The savages who flew passenger jets into skyscrapers were simplistic too. We can nuance ourselves right into another attack if we're not careful. Find the enemy and kill him. Do what needs to be done to accomplish that objective. Otherwise, be to prepared console surviving family members of the next attack that, well, at least none of the bad guys had water poured up his nose. · Sep 14 at 12:57pm
Edited on Sep 14 at 12:58 pm
Sign me up for the Simplistic Club.
Jun '11
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Counterfactual arguments -- in this case cloaked in "necessity" -- are seductive, elusive, and easy to turn around.. For example, what if we had questioned KSM oh so gently, but on an El Al plane heading east? Might well have talked.
@Skyler -- With you on the Japanese example, though not quite equivalent. Waterboarding for Japanese torturers was like singing scales is to a tenor...just warming.
Feb '11
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Skyler:
It's my understanding that we considered water boarding torture when the Japanese used it on Americans.
Actually, no, we didn't because the treatment of American POW's was indeed tourture. Japanese water torture involved forcing a POW to eat rarw rice, force him to drink water and then endure the excruciating pain of the expanding rice. Quite different.
May '11
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
As odd as it sounds, in the larger picture I think it is more humane to execute those who violate the "laws of war" than to twist ourselves into pretzels trying to be the "appropriate level of humane" to those we capture.
If we execute, after summary court martial, those who we capture who violate the laws of war (attacking civilians, not wearing uniforms) then over the long term, we encourage combatants to obey "the rules" While it might be seen as cruel in the short term, in the long term it benefits all humanity by placing certain activities outside the norm and thus encouraging the barbarity of war to at least be fought within certain limits.
Further, I'd argue that one of the reasons we are seeing the upsurge in this type of war-making is that we have gotten away from punishing it in the severe manner we use to.
Dec '10
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
michael kelley
Dave Carter: "I am not worried about how the Chinese will respond in the future, I am worried about the responses around the world and at home toward the United States for what we do. In this regard, I think it is a mistake to calibrate our responses to the behavior of our worst enemy."
With respect, I would prefer that we calibrate our responses to that which are necessary to protect the homeland from attack. In that regard, I prefer the simulated drowning of a terrorist (with a physician in attendance) to the mass incineration of an American city.
I know mine is a simplistic response, impervious to fine legal distinctions. The savages who flew passenger jets into skyscrapers were simplistic too. We can nuance ourselves right into another attack if we're not careful. Find the enemy and kill him. Do what needs to be done to accomplish that objective. Otherwise, be to prepared console surviving family members of the next attack that, well, at least none of the bad guys had water poured up his nose.
Sign me up for the Simplistic Club
I'll take a charter member ship.
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Amen, Dave Carter.
Dec '10
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Skyler:
...
It's my understanding that we considered water boarding torture when the Japanese used it on Americans. ...
Skyler, in the Pacific during WWII, no one was worried about getting water poured on their face. Japanese torture consisted of actual atrocities. You should check with Marine resources for details.
Jun '11
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
I always liked Allen West's take on stuff like this.
Asked if he would have act differently if under similar circumstances again, West testified, "If it's about the lives of my soldiers at stake, I'd go through hell with a gasoline can."
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Skyler: Thank you, Professor Epstein.
It seems the argument for this "enhanced interrogation" rests on a definition of torture that is newly developed and on necessity.
It's my understanding that we considered water boarding torture when the Japanese used it on Americans.
The necessity argument seems to be unsupported to me. It's really hard to claim what would have happened had we not used these techniques.
It's my opinion that we should treat prisoners as well as we can reasonably can, to encourage more enemy to surrender. · Sep 14 at 11:59am
You capture that I am of two minds on this issue precisely because I do not have good evidence of the on the counterfactual. My presumption runs in your direction. But I am open to persuasion.
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Nyadnar17: Two Issues:
Doesn't giving non-treaty signatories the same benefits and protections as signatories undermine incentives to enter into treaties?
If we are to reject John's definition of torture then doesn't that mean we need to replace it with something else? What would your definition of torture be? What would be the harshest Enhanced Interrogation method allowable under that definition? · Sep 14 at 12:19pm
I am as worried about the effect that the use of special treatment does to the U.S. and our institutions. I think that the treaty process will work fairly well either way for those nations that refuse to sign face huge public relations issues of their own.
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
If the choice were that black and white, your case would be very strong. But there are real issues about the causation chain. The information you get could be worthless, and moreover, it could embolden others to take up arms against us.
I am not normally a movie buff, but the point in the movie Rendition did strike me as real. Torture someone who has no secret information, and you could get the worst sort of responses just to stop the torture. There is no way to give the interrogator what he wants if you simply do not have that information.
Mar '11
Re: President Bush Was Not Justified in Treating Enemy Combatants Inhumanely: A Response to John Yoo
Antiphon: Prof. Epstein, the question should not hinge on "the responses around the world and at home", but in the nature of the conflict. As Prof. Yoo pointed out, this is not a conventional war and our enemies are unlawful combatants who target civillians, therefore the collection and analysis of critical information is paramount.
If you have questions about our treatment of detainees I suggest Mark Thiessen's book. · Sep 14 at 12:49pm
We are dealing with a culture (yes, culture, not enemy) which regards forebearance as weakness. Asymetrical warfare requires a different approach, and as part of that approach we should be less concerned about how we feel about ourselves for playing by the rules and more concerned about doing what is necessary to offset the natural advantage of those who don't play by the rules. Showing the world that we will go beyond what Geneva requires to keep ourselves safe is in itself another weapon in that asymetrical war. I give this round to Dr. Yoo.