Richard Epstein, Wrong on Torture
In his essay yesterday, which appeared in Hoover Institution's Defining Ideas, Richard Epstein raised a number of hard questions about the war on terrorism. I agree that the most important issue, after deciding that the 9-11 attacks amounted to an act of war, was which set of rules of war would apply. For me, the Geneva Conventions clearly do not apply. Al Qaeda is not a nation-state, it did not sign the treaties, and it has no desire to follow them. Yet Richard writes,
The United States should have extended the protections of the Geneva Conventions to enemy combatants whether the U.S. was strictly required to or not. That approach would have led to a different attitude toward the question of rendition and torture. It would have led government officials to reject categorically the idea that we could farm out the right to torture to our allies overseas while retaining the right to reclaim custody of prisoners once the torture was over. And it would have led the administration to reject the untenable, narrow definitions of torture that were advanced in John Yoo’s famous torture memos.
I do not see why the U.S. should extend the protections of the Geneva Conventions to terrorists. Al Qaeda fights by violating the basic rules of warfare, which are to not intentionally target civilians and to make sure that fighters are distinct from civilians. We would only be giving al Qaeda the rights and privileges reserved for honorable soldiers for fighting like barbarians. The incentives should be the exact opposite: they should receive humane treatment, but nothing more, unless their behavior changes.
One might argue that the United States should follow Geneva to encourage fair treatment of our own soldiers when they are captured. This is a worthy goal, but I don't think it bears out in practice. Al Qaeda is not going to treat any captured Americans humanely -- it usually executes them on the spot. Our enemies in most wars since the signing of the Geneva Conventions have abused our captured soldiers. And if we fight a war against a China in the future, I don't think that they will treat our soldiers any differently based on how we treated al Qaeda terrorists in a different war in the past.
On the subject of torture, Richard goes on to write,
Try as I might, I cannot bring myself to believe that a statutory prohibition statutory prohibition against the infliction of "severe physical or mental pain or suffering" should be read so narrowly that it covers only "death, organ failure, or the permanent, impairment of a significant body function." In particular, a sensible definition of torture seems to cover water boarding, where one pours water over the face of an immobilized and blindfolded individual to induce the immediate gag reflex of drowning.
I've written on this topic at length, and I think it is worth reading a more complete discussion of the issue in my contribution to Confronting Terror, just out last week. I would only make a few points in response. Our general reading of the torture statute --which was in important respects later adopted by a federal appeals court, and even by the Obama Justice Department in briefing in a separate case -- was that the defining characteristic of torture is the specific intent to carry out extreme acts of inhumanity that cause severe physical pain or suffering of a mental or physical nature. As for waterboarding in particular, this was something that the Defense Department used on 20,000 of our own officers to train them in the event that they were captured in combat, and there was no evidence from those cases that it caused physical pain or created any long-term harm afterwards. When balanced against the great need for information on al Qaeda and its pending attacks in the first few years after the 9-11 attacks, I think it was a reasonable interrogation method to use on only the top three leaders of al Qaeda. And I think the results speak for themselves -- a decade without any successful terrorist attacks on the United States, the decimation of al Qaeda's top leadership, and the location and killing of Osama bin Laden.
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Comments:
May '11
Re: Richard Epstein, Wrong on Torture
Dear Professor Yoo,
You said, "The incentives should be the exact opposite: they should receive humane treatment, but nothing more, unless their behavior changes." My question is why should they receive humane treatment? Why should they not be executed after a short court martial for fighting as guerrillas, out of uniform. That use to be the standard treatment in my understanding.
Extending the logic of your argument, if we want to encourage those engaged in armed conflict to abide by certain rules, then shouldn't we punish the intentional violation of the most basic of those rules (civilains and uniforms) in the harshest possible manner?
We can't be worried about how they would treat our soldiers, since they have shown no reticence about summarily executing them and desecrating the bodies.
Edited on September 14, 2011 at 8:25pmAug '10
Re: Richard Epstein, Wrong on Torture
Enhanced interrogation is not torture. Ask Torquemada what torture is. I know plenty of guys in the service that have been waterboarded as a part of training. It is not torture.
These pantywaists thought showing a sunni thug a dog was torture. So would that make watching "Lassie" an enhanced interrogation.
It is a shame you have to take such grief for the good work you did in providing the legal framework for one of the true successes of the continuing war, as evidenced by the tenth anniversary of no attacks.
Re: Richard Epstein, Wrong on Torture
I could not contain my response to 200 words, so you can find my response here.
Sep '10
Re: Richard Epstein, Wrong on Torture
A captured terrorist has knowledge of an imminent biological attack that will kill 100k Americans. Waterboarding fails to get the information to stop the attack. I would hope extreme acts of inhumanity that would cause serve pain and suffering would be used without any lawyer being consulted. The fact that the Bush WH went to such lengths to construct what they regarded as necessary fig leaves for doing what they believed was necessary says a lot about the administration and why 9/11 happened in the first place. The terrorists were at war with us long before 9/11, if we had a few less WH lawyers and a few more warriors maybe the elites in DC might have been able to figure that out.
Dec '10
Re: Richard Epstein, Wrong on Torture
I am completely in John's camp on this one.
Enhanced Interrogation is not torture. That point is not mere semantics. If you are going to call Enhanced Interrogation then is "good cop bad cop" torture? Is making arguments the person should confess based on their religious beliefs torture? Bright lights, uncomfortable seats, showing them pictures of the victims? You have to draw the line somewhere and "Does this technique cause permanent physical or mental harm?" seems like an excellent place to draw it. And if you don't want the line there then the onus is on you to draw it somewhere else. This is war, the old "I can't define porn but I know it when I see it" isn't going to cut it here.
Even if Enhanced Interrogation were torture non-signatories of a treaty should not benefit from the agreements of a treaty. Doing so undermines the whole concept of treaties.
Oct '10
Re: Richard Epstein, Wrong on Torture
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.
May '10
Re: Richard Epstein, Wrong on Torture
Even if one thought that waterboarding was a step beyond other EIT, it is clearly no worse than gray under the procedures used to carry it out. That clearly demonstrates no mens rea associated in any way with "torture".
I love Richard (just intellectually, you understand...), but I am tired of these black and white discussions about hard topics.