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Friday, April 17, 2009

The torture memos: the continuation of democratic politics by other means?

I realize I'm going to get flak for this. Nevertheless, I encourage people to read them. Start with the 18 page memo signed by Jay Bybee, former head of the Justice Department's Office of Legal Counsel (OLC.)

There is much to digest. Andrew Sullivan is only a little hysterical when he calls the Bybee memo "as chilling an artefact as you are ever likely to read in a democratic society."

I haven't finished reading yet. To be honest, I didn't really want to read any more. The memos are disturbing (and the some of the documents housed on the ACLU's website are of poor quality for some reason, making reading even more difficult.)

The memos gave legal support to several interrogation methods the CIA used following 9/11, including waterboarding, the use of insects, sleep deprivation, stress positions, etc. CIA officials wanted to know if these techniques violated the prohibition on torture found in American and international law. Relying on the details provided by the CIA, the memos conclude -- after lengthy, albeit fascinating analysis -- that the interrogation techniques do not violate the law against torture.

Perhaps one of the most interesting and horrible sections of one of the memos is this one, images of which I've shamelessly stolen from Glenn Greenwald.


The footnote at the end of this excerpt reads as follows:

These excerpts are from the May 25, 2005 memo, authored by Steven Bradbury, head of the OLC. In short, the memo acknowledges (a) that the interrogation techniques used by the CIA (nudity, water dousing, sleep deprivation, etc) resemble practices that the U.S. has labeled torture when other countries use them, but (b) that this fact isn't, and needn't be, relevant.

I have a very hard time not interpreting this passage as the acknowledgment that inherently bad acts are permissible when the U.S. does them.

Some on the left who will undoubtedly view these memos as an indictment of the Bush administration, if not the United States in general. But that's insufficient. Any nation, not just the United States, might use coercive interrogation techniques after an event like 9/11. Some of those nations -- China, perhaps -- would not seek out legal advice before or after using them. In such cases, we wouldn't even have memos like these to look back on.

I am not, not saying that this makes torture right. If waterboarding interrogation subjects is wrong, it is wrong when anyone does it. But democracies consult their legal bureaucracies. Other societies torture in secret. The former reality gives rise to the pathetic hypocrisy the torture memos exhibit. 

If Canada had its own 9/11, would it engage in torture? Maybe not. Would it allow torture to be used on its behalf? Almost certainly. Have Canadian intelligence agencies benefited from information gained through the use of torture? Probably.

To condemn the U.S. is to condemn politics in general. Clausewitz said that "war is a continuation of politics by other means." Foucault, developing the thought of Thomas Hobbes, has turned that saying on its head: "Politics is a continuation of war by other means." There is some truth to both these sayings, as shown by the American use of torture as an interrogation technique.

Torture, in fact, is the continuation of democratic politics by other means. To rule in a democracy, one must ensure that not too many of one's citizens die through the violence of terrorism. We have legal mechanisms, checks and balances, to curb the violence of the state against its citizens. These parchment barriers serve well enough to ensure that the state's violence breaks most severely against despised minorities, like drug users, and not the average citizen.

They do not -- and, as many of my American students tell me, should not -- protect those outside the polis. If non-citizens must be sacrificed to safeguard the polis, they will inevitably be sacrificed. Torture is the application of the logic of citizenship, taken to a conclusion that makes us squirm and recoil. Nevertheless, most of us do not take it to be a reductio of that logic, or of the state's unlimited capacity to inflict violence in order to achieve "necessary" social ends.

That is, perhaps, a mistake.

U.S President Barack Obama has done a curious thing. In releasing the memos, he also immunized the torturers. His attorney general has said that "officials who used the controversial interrogation tactics would be in the clear if their actions were consistent with the legal advice from the Justice Department under which they were operating at the time."

But, on second thought, this was to be expected: President Obama knows he will undoubtedly need the services of the torturers in the future. Democracy must be defended.

Posted by Terrence Watson on April 17, 2009 | Permalink


You may get flak for this, I may get flak for this, but I really don't think that torture such as waterboarding, which is still relatively benign, as opposed to pulling teeth or toenails, is all that bad when it means getting vital information that we need to protect ourselves.

We're allowing ourselves to be threatened and undermined, because the bleeding hearts always insist on "playing by the rules".

Newsflash: on 9/11 the rule book burned in the rubble and debris that used to be the Twin Towers. This is a new world order, and we must deal with subhuman trash appropriately.

Posted by: Werner Patels | 2009-04-17 7:03:06 PM


Thanks for your comments. So we'll both take flak ;-). Your profile is higher, so maybe you'll shield me from the brunt of it.

I just realized I published this one before finishing it... grr, hate it when that happens!

Posted by: Terrence Watson | 2009-04-17 7:23:02 PM

Waterboarding is not torture! Mess with my family and I'll show you torture! On the other hand, I am sure that Al-Qaeda and likeminded terrorist groups are thankful to now know what interrogation methods are used. Do you think that Al Qaeda will now publish their guide on torture methods? Probably not, uh? Maybe we can now publish all our military plans before we actually conduct them! You know between this and no longer saying war on terrorism, I sometimes get the feeling that the left is rooting for the terrorists. The big threat now(according to Janet Napolitano) is right-wing extremists which supposed refers to anyone involved in a pro-life group, a supporter of NRA, a supporter of the anti-illegal immigration group. Her document also warns about combat vets being especially susceptible to far right recruiters. Oh well, I guess I better buy a turban and prepare to live under islamic law. Thanks for destroying my country you leftist trash! My only consolation is that once in power, the islamist will go after you politically correct scum as well! I just hope that they first give you the Turkish prison treatment first(see the movie Midnight Run).

Posted by: Sam | 2009-04-17 7:29:40 PM


I'm sympathetic to your position, but here's the thing: the U.S. has called waterboarding torture before. And, under U.S. law, the practice looks a LOT like torture.

The memos have to do some serious backflips to square the practice with the law. It's awkward and embarrassing.

If the U.S. wants to use waterboarding, it should change the law. It should come out proudly in favor of the practice, instead of keeping it in the dark. And I don't buy the argument that this would allow terrorists to steel themselves against the practice.

The revulsion to drowning is basically automatic. If waterboarding produces the sensation of drowning, there is very little people could do to acquire a resistance to the technique.

But it is precisely the fact that waterboarding causes the feeling of drowning that makes it difficult to square with the law against torture. Hence, we need to change the law.

Posted by: Terrence Watson | 2009-04-17 7:36:05 PM

Here we go again. Those lefties crying anything and everything torture need to visit regimes run by their fellow travellers: N. Korea, China, or Vietnam to find out what torture is. If it still is not clear to them, ship them off for a good stay in any of the Muslim countries.

Posted by: Alain | 2009-04-17 8:12:54 PM

Sympathy is nice but it will get him nowhere when the next attack(its bound to happen) and many innocents are killed by those murdering thugs. If my family or Sam's is murdered are you going to say that you feel my pain but isn't it better that we don't waterboard? Its your opinion but I would have a strong desire to start swinging. Our enemy is hitler-like but much of the world ignores their behavior. I sometimes wonder if Obama thinks that way too. The United States stubs someones toe and everybody boos. There is an anger rising here. Obama's is running around and doing his "I'm ashamed to be an American" bit. Its turning a lot of Americans off to him. If an incident occurs, he has to act at least as tough as Bush(if not stronger). If Obama tries to get U.N. approval or waste time going through international courts before doing anything, there will be widespread calls for his impeachment! Trust me, American reaction(after 9-11) will look restrained to how fired up we will be over another one. At that point, all the political correctness and seeking U.N. approval will go out the door for most Americans. They will view themselves in danger and think most of the world doesn't care.

Posted by: David | 2009-04-17 8:45:43 PM

If you're OK with torture against non-citizens, I see no reason why you'd oppose it under similar circumstances for citizens.

Suppose a child rapist is caught, but he has some of his victims hidden in a dungeon and wants $1,000,000 or they will die of lack of food and water (this isn't totally hypothetical, see Marc Dutroux, Belgium and Clifford Olson, Canada), and he's laughing in the police's face when they ask him to tell them where they are. The pro-torture gang's justification of torture - that there are lives in imminent danger - applies here.

The slope gets slippery: the average pedophile is said to rape 200 victims or whatever by the time they get caught; why not torture all pedophiles as a matter of policy when apprehended to get them to confess to their presumed previous crimes? Why not extend this to bank robbers too? You may get away with American exceptionalism in your classroom Terrence but it doesn't play outside the USA, human rights are for everyone, or so human rights activists tell us.

Posted by: No Commies | 2009-04-17 11:14:55 PM

So you're against torture, No Commies?

I'm impressed. Human rights are universal -- agreed.

Posted by: Matthew Johnston | 2009-04-18 12:03:17 AM

"So you're against torture, No Commies?"

Within the context of a liberal democracy, yes, I'm against it. I'm not a big fan of liberal democracy, and neither is Terrence as I understand, to his credit, so in a way we're both being too clever by half, or at least a quarter.

Many people who have criticized Bush over torture are quite OK with pedophiles and other undesirables getting beaten, raped, and murdered
in prison, they're just too chicken to codify it in law. Seems inconsistent to me. Many people against the detainment of Khadr and other undesirables are OK with over 50% of Canadians incarcerated without even being convicted of a crime. That seems inconsistent to me too. There's nothing conservative about jailing innocent men, though ignoring them seems to be fundamental to the liberal left.

Posted by: No Commies | 2009-04-18 6:38:55 AM

The issue here, as I see it, is legalization--Dershowitz's "torture warrants," for example. Or Obama's embrace of the Nuremberg Defence, which is a kind of retroactive legalization, de facto if not de jure. These are slippery slopes indeed.

Torture, therefore, should always be illegal, reflecting the humane values that should be at the core of any society daring to call itself civilized. But that doesn't mean it will never be used. The pedophile illustration, above, in which human lives hang in the balance, might well result in torture, not to generate evidence or questionable intel, but to save specific lives. In such cases, no doubt the penalties for torture would be mitigated. But it should still remain illegal.

Posted by: Dr.Dawg | 2009-04-18 7:25:18 AM

Why do you support a system in which over 50% of people incarcerated in Canada haven't even been charged with a crime, Dawg?

When you ignore that massive injustice in lieu of the highly debatable "injustices" alleged to be perpetrated against Khadr and that Sudanese fellow, it becomes fair to peg you as a defender of that system, and fair to question your values and motives.

The whole world is watching Khadr, he doesn't need your (trendy) support, it's the nameless and faceless fellows getting beaten to a pulp daily in your own country's jails who require your witness, and not just the ethnic ones either. Shame on you for conspiring to cover up Canada's awful record.

One question while I have your ear: have you ever co-operated with any law enforcement agency to provide training, sensitivity or otherwise, for police officers, or do you have any other past relationship with any LEA's that might be germane to this discussion?

Posted by: No Commies | 2009-04-18 8:01:43 AM

Pointless blog and commentary.

Posted by: Liberal | 2009-04-18 8:27:04 AM

have you ever co-operated with any law enforcement agency to provide training, sensitivity or otherwise, for police officers, or do you have any other past relationship with any LEA's that might be germane to this discussion?

Why do I get just a whiff of Lyndon LaRouche at this point?

Posted by: Dr.Dawg | 2009-04-18 2:13:01 PM

I think Dawg and Commies get it. The issue -- and what I was addressing in my post -- has to do with legalization, or the lack thereof.

One question is, can the practice of waterboarding be squared with the U.S. law prohibiting torture? That's not the same as the question of whether torture is morally permissible or not.

After World War II, the U.S. helped draw a bright line. Or maybe it discovered that line, written in the fabric of the universe, and merely pointed it out to everyone else. If some coercive interrogation practices cross that line, that's a problem, and legal maneuvering shouldn't make it go away (except that it will. Why is that, do you think?)

My point is that "the logic of democratic citizenship" (a) makes sticking to the right side of that line difficult, and (b) makes it easier to keep transgressions of the line hidden.

Non-citizens don't count. And why should they? I was thinking about this last night, after I temporarily lost my laptop charger and couldn't get on. At the time, I was thinking that the role democracy assigns to its rulers is something like "protect the volk." But that's not quite right. It's something more like this:

"Give the volk a good-looking deal." That means foreigners might count. Sort of. Any suffering inflicted on them has to be economized over, so that the benefits look worthwhile enough to make the exchange worth it. CIA agents aren't sadists, and I assume they get a paycheck for their work.

Since suffering has to be economized, not all foreigners can count equally. Equal rights for everyone is not efficient in this context. That's why, if there is a slippery slope for torture, it probably looks like this:

1. Brown-skinned, stateless foreigners.
2. Brown-skinned foreigners from states full of brown people.
3. Lighter-skinned foreigners from these states.
4. Light-skinned foreigners from nations with which the U.S. has friendly relations.
5. Brown-skinned American citizens.
6. Light-skinned American citizens.

It's a long slope. I'm probably missing some steps. But if you're one of the volk, standing at (6), it will take some time before you have to worry about yourself. And it's not like the government wants to go all the way down the slope. It gets a much better deal if it can stop somewhere around (3).

Dawg, I fear you've had a bad influence on me. :-) But I am much more cynical.

Posted by: Terrence Watson | 2009-04-18 2:23:49 PM

How about a compromise? The government won't torture rapists and child molesters. However, the names of those convicted will be known to the public (as well as where they move to once free). If the local citizenry decides to have a "talk" with the individuals then its none of the government's business. Does that make you feel better?

The government won't torture and individual citizens can choose for themselves. It will all come down to the personal opinion of each citizen. Can you get anymore libertarian than that? I think Ayn Rand might like that.

Posted by: Jackson | 2009-04-18 8:30:19 PM

Some of you really contradict yourselves after all I've read.

Posted by: Tim Trudeau | 2009-04-18 10:57:26 PM

You people should all be waterboarded for a few hours. Then I'll believe what you'll say about it being torture or not.

Posted by: Randall Nowan | 2009-04-19 8:14:35 PM

I remember a moment during the US presidential election where I sat up and took notice. Hillary Clinton said something which I do not agree with. However, it may prove worth the consideration, as Melville says, for those to whom it may prove worth considering:

"America cannot be known as a nation that tortures."

A disturbing conception and a dark current many do not realize underlies the debate.

Posted by: Timothy | 2009-04-21 7:18:49 PM

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