March 13, 2005

Revisiting Iraq, and Rooting For Bush (Stuart Taylor Jr., 03-12-2005, National Journal)

I was guardedly in favor of invading Iraq, because I believed our president’s confident claims about Saddam Hussein’s weapons of mass destruction and his collaboration with Al Qaeda.

As time passed, I came to fear that the invasion had probably been a disastrous mistake — perhaps the worst by any president in my lifetime.

That was after the WMD and the supposed Qaeda alliance turned out to be intelligence-agency fantasies grossly exaggerated by President Bush and his aides. And after the occupation turned into a blood-soaked disaster. And after many Iraqis who had initially greeted us as liberators switched to wanting us out, or dead. And after the Abu Ghraib photos. And after anti-Americanism soared to unprecedented levels around the world. And after experts confidently assured me that Iraq was doomed to civil war and chaos and would become a haven for terrorists.

I descended into dismay about Bush and his top people. I was driven deeper into it by administration claims of war-on-terrorism presidential powers that can only be called tyrannical: to seize anyone in the world, anywhere in the world; to imprison and interrogate the suspect indefinitely, incommunicado, with no semblance of due process; even (if the president chooses) to torture him. Not to mention Bush’s feckless failure to prevent North Korea from going nuclear, the Guantanamo abuses, the disdain for diplomacy, the irresponsible approach to global warming, the fiscal recklessness, the shifting of tax burdens from the rich to future generations, the swaggering refusal to ever admit error, the smirk, and more.

Now, though, I am rooting for Bush to go down in history as a great president. […]

How can we not root for Bush to win this campaign for Arab democracy, even if his chances still seem no better than even? And while celebrations are premature, shouldn’t we sometime Bush-bashers — and even the full-time Bush-haters — be prepared to give great credit to him and his neocons, if and when it becomes clear that they have engineered a historic breakthrough?

Mr. Taylor is one of that sadly mere handful of folks who make up the Decent Left, those capable of looking past personalities and ideologies to what is best for the country and the world and, more imprtantly, recognizing that sometimes it’s the other side that knows best.

Who else could we add to this list (allowing considerable leeway)?:


Robert Samuelson

AS REGARDS THE EXTENSION OF LIBERTY GLOBALLY (in other words, not in domestic affairs):

Michael Walzer
Michael Ignatieff
Paul Berman
Christopher Hitchens

Who else?



May 14, 2004

THE PERILS OF TORTURING SUSPECTED TERRORISTS: Does the use of coercive interrogation techniques lead inevitably to abuses such as those committed at the Abu Ghraib prison in Iraq? (Stuart Taylor Jr., June 2004, Atlantic Monthly)

How can we get potentially lifesaving information from suspected terrorists without trashing human rights and staining our souls? Is torture ever morally justifiable? Is it ever legal? Should it be legal? What about less extreme forms of coercive interrogation, which range from polite but persistent questioning to covering prisoners’ heads with black hoods, keeping them naked in cold, damp cells, depriving them of sleep, denying them adequate food, forcing them into uncomfortable “stress” positions, and threatening to kill them or their families? Does the use of such coercive interrogation techniques—which the Pentagon appears to have authorized in at least some contexts—lead inevitably to crimes such as those at Abu Ghraib?

Here are some proposed answers.

* Torture may be justified in rare, mostly hypothetical cases. It is tempting to say that torture is always wrong, period. Beating prisoners unconscious, breaking their bones, burning them with hot irons, shocking them with cattle prods, pulling out their fingernails, or similar practices are viscerally horrifying to civilized people and condemned by the moral codes of all civilized societies.

But what about the “ticking-bomb” hypothetical used by law professors to confound their students: If the government captures a Qaeda terrorist known to have planted a bomb timed to explode in a crowded area within three hours, would it not be justifiable to try to do whatever it takes to get the location out of him?

And what about Qaeda leaders such as Khalid Shaikh Mohammed, who appears to have directed the 9/11 attacks and who knew of many planned attacks at the time of his capture last year? Such cases “pose one of the strongest arguments in modern times for the use of torture,” Mark Bowden wrote in The Atlantic Monthly last October, because “getting at the information they possess could allow us to thwart major attacks, unravel their organization, and save thousands of lives.”

And what about the Qaeda member caught by Philippine intelligence agents in 1995 in a Manila bomb factory? Defiant through 67 days of savage torture—most of his ribs broken, cigarettes burned into his private parts —he finally cracked when threatened (falsely) with being turned over to Israel’s Mossad. And he revealed the so-called “Bojinka” plot to crash 11 U.S. airliners and 4,000 passengers into the Pacific, to fly a private Cessna full of explosives into the CIA’s headquarters, and to assassinate Pope John Paul II.

* Even so, torture is almost never justifiable in real life. There are at least three reasons. First, it will rarely if ever be knowable in advance that torturing a particular suspect is likely to save innocent lives. Many suspects have no information of great value. Even leaders such as Shaikh Mohammed may have only stale information, or may not break, or may concoct false leads, or may be more susceptible to less brutal interrogation techniques designed to create a sense of dependency and trust.

Second, official approval of torturing a few especially “high-value” suspects would lead in practice to the torture of dozens or hundreds of others—including innocent civilians mistakenly suspected of terrorism—while unleashing the most sadistic impulses of those involved. The horrors of Abu Ghraib were openly celebrated by the perpetrators despite clear criminal prohibitions. Imagine what would happen without such prohibitions.

Third, using torture might well cost many more American lives than it would save, by feeding the rage of those who see Americans as sadistic, hypocritical, anti-Muslim imperialists and thus driving more recruits into the terrorist murder brigades—as the Abu Ghraib barbarities have surely done.

* Torture is always illegal, and should be. Both federal and international law are crystal clear in banning any and all use of torture—including torture of terrorists—although the law is unavoidably ambiguous in defining torture. The United Nations Convention Against Torture, which the Senate ratified in 1994, with Congress providing criminal penalties for violators, bans intentional infliction of “severe pain or suffering, whether physical or mental.” Military law contains similar prohibitions. And President Bush pledged in June 2003 to lead the world in “prohibiting, investigating, and prosecuting all acts of torture,” although, after Abu Ghraib, his words have a hollow ring.

Should the law recognize an exception for cases involving ticking bombs or terrorist kingpins such as Shaikh Mohammed? No, because there is no tolerable way to finish this sentence: “Torture is prohibited except when … ” That’s why Israel’s Supreme Court, which has wrestled long and hard with the moral quandaries at the intersection of terrorism and torture, has banned all forms of torture, including the violent shaking of captives. At the same time, the Israeli court has condoned other types of coercive interrogation and has suggested that there might be an “emergency conditions” defense for any cases in which security personnel honestly believed that illegal use of force was the only way to prevent imminent terrorist murders.

The best way to minimize the conflict between the need for aggressive interrogation and the prohibitions of human-rights law may be to define “torture” narrowly enough on a case-by-case basis to leave considerable leeway for tough, coercive interrogation short of excessive brutality.

Perhaps it’s better to just be honest with ourselves and acknowledge that — particularly since we have no compunction about killing such suspects while trying to capture them and executing them afterwards — torture is an unfortunate but useful means of eliciting valuable information during wartime.


May 2, 2002

Al Qaeda Detainees: Don’t Prosecute, Don’t Release (Stuart Taylor Jr., April 29, 2002, National Journal)

At first blush, the idea of indefinite “preventive detention” of people convicted of no crime may seem harsh and un-American. Indeed, it has (and probably should have) no basis in domestic U.S. law, with narrow exceptions such as civil commitment of the dangerously mentally ill. Prolonged detention based solely on a suspected propensity to commit future crimes may well be unconstitutional.

But in the current wartime context, these moral objections and legal obstacles are not insuperable. As a legal matter, the president has broad power to decide what to do with terrorists and others captured overseas by the U.S. military. In addition, military prisoners held abroad do not have the same rights under U.S. law as civilian prisoners in the United States. And there are international-law precedents for detaining “unlawful combatants” and members of terrorist organizations until they are no longer dangerous, as well as for detaining prisoners of war until the war is over.

As a moral matter, preventive detention is the least-bad option for dealing with many captured Al Qaeda jihadists. It’s better than setting would-be mass murderers loose to prey on our people or prosecuting them without solid evidence implicating them individually either in war crimes or in specific terrorist conspiracies.

We’ve long believed Stuart Taylor–a liberal, with whom we frequently disagree–to be the best legal affairs columnist on the planet. Here he becomes one of the few Left or Libertarian pundits willing to acknowledge that what he advocates, and what we are now doing, may be both unconstitutional and justifiable. We eagerly await the counterarguments from those who think the President’s oath of office requires him to loose mass-murderers because of constitutional nicities.