December 08, 2005

Letter to the Paper L

I think the torture debate is being conducted on the wrong grounds. If a uniformed soldier from the other side of a conventional war were to successfully secrete a nuclear device in NYC, he should not be treated the same as a terrorist who has accomplished the same act even though the ticking time bomb problem is exactly the same in both cases.

Neither anti-torture nor torture proponents want to touch this case with a ten foot pole. It's uncomfortable for both sides.

The Glittering Eye had an article on torture recently. Below is what I left in comments.

I'd like to chime in with a plea for a good definition of torture. The difficulty of drawing the line between coercive interrogation and torture is exactly the battlefield of lawfare, the use of the law to conduct warfare against those who believe in the rule of law.

There is an important principle at stake in the treatment of warriors who adopt a pre-westphalian ethos such as Al Queda. They are retrograde and evil in attempting to bring back a form of warfare that has long been abandoned as too indiscriminate and cruel. They do not respect the notion of civilians and the immunities that civilians have from combat. Read about atrocities carried out prior to the adoption of westphalian limits and you will see the horror that we can descend to. Without those limits we *will* descend to that form of warfare again.

We are charged, both as a civilized nation and under treaty obligations to enforce the Geneva conventions and the customary laws of war. One of those obligations is to punish any side that habitually violates the conventions and the customary laws of war. We are morally charged with treating them in a manner that will induce their compatriots and superiors to change their policy and to adopt the customary laws of war in order to restore the immunities from combat that civilians traditionally have.

I would suggest that some of the things that anti-torture activists want to ban (prisoner sleep deprivation, loud music, water boarding) fall into the realm of legitimate penalties for abandoning the laws of war and endangering civilians to the level that Al Queda and, frankly the entire so-called Iraqi resistance has descended to. The Chechen rebels are in the same boat as far as I am concerned.

If you take away legitimate punishments for these crimes without even trying to offer up better solutions for the problem, you're essentially discarding the customary laws of war of the past several centuries including the Geneva Conventions.

The truth is whatever we've done in order to induce compliance with the laws of war, it hasn't been harsh enough. The war crimes continue on a daily basis and endanger civilians all over the world. The other side is not deterred.

I don't think that filleting KSM and feeding him his own body parts fried in pork fat is the answer. There is a line past which we should not cross. But the argument about where to draw the line on interrogation has to deal with the wider question of the thousands who have died because one side habitually violates the laws of war and the other side is not harsh enough in punishing them for it.

Posted by TMLutas at December 8, 2005 10:58 PM