This Week's Debate: U.S. Treatment of Detainees
This week we'll be debating abuse of prisoners by U.S. personnel in Guantanamo, Abu Ghraib and elsewhere. Have these documented incidents gravely damaged the U.S. image in the world? Have we lost our moral high ground and helped Al Qaeda recruit more terrorists? Are our troops in more danger now than before? Or, are abusive interrogations a useful tactic to elicit key information?
Bing West, a former assistant secretary of defense, writes that the stories of prisoner abuse are overshadowing the heroic things our soldiers are doing each day. This is undoubtedly a concern -- but what's the solution? Should we stop talking about the abuse or should we insist that our government put a stop to it categorically and in accordance with international law?
Senator John McCain and 89 of his Senate colleagues favor the second option and passed an amendment to a defense spending bill prohibiting torture. But the administration appears willing to do anything in its power to stop them from imposing such restrictions -- and has threatened a veto of amended legislation.
In an editorial a couple weeks ago, the Post found the veto threat to be particularly egregious.
Let's be clear: Mr. Bush is proposing to use the first veto of his presidency on a defense bill needed to fund military operations in Iraq and Afghanistan so that he can preserve the prerogative to subject detainees to cruel, inhuman and degrading treatment. In effect, he threatens to declare to the world his administration's moral bankruptcy.
At Blog Critics, David R. Mark notes that "a veto by Bush would almost certainly be symbolic, because the Senate has the votes to override it. And what a symbol it would be."
But are there times when a president does need the power to allow interrogators to inflict cruel and unusual punishment on detainees in order to get vital information that they believe could save lives? Michael Levin, in his paper The Case for Torture, offers some instances in which he believes torture could be a morally permissable way of "preventing future evils."
Last year, Douglas W. Kmiec argued in the National Review that the memos questioning the applicability of the Geneva Conventions and other anti-torture laws "accurately explore the maximum scope of presidential power during war, provided the presidential decisions being analyzed are necessitated by grave and unforeseen emergencies and the specific tactical responses necessary to meet them. There is nothing in the memoranda to suggest that torture -- as international and domestic law defines it -- was recommended, or that the president or any other high-ranking or even mid-rank officer approved of cruel and abusive behavior."
Kmiec also contends that "the definition of torture under applicable international and domestic law is quite precise. It involves specifically intended infliction of severe physical or mental pain or suffering." He says the treatment of detainees at Abu Ghraib was inexcusable, but it wasn't torture.
One key to the government's rationale, however, is the fluidity of the definition of what constitutes "cruel and unusual" treatment. While the definition of torture may, as Kmiec says, be quite precise, the definition of cruel and unusual "is not a hard and fast rule ... and what is forbidden may depend on the circumstances," writes Michael at Discourse.net, as part of his detailed analysis of the Working Group Report on Detainee Interrogations. "Having constructed this loophole," he writes, "...the memo then tries to squeeze through it, noting in its Eight Amendment analysis that the 'government interest here is of the highest magnitude' (p. 38) and hence things that might be excessive force in other circumstances might not be here."
Michael also doesn't buy the presidential powers argument, explaining that the report "sets out a view of an unlimited Presidential power to do anything he wants with 'enemy combatants.' The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. ... I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does."
In the Huffington Post Bob Burnett writes:
George W. Bush made the decision to ignore the Geneva Conventions the night of September 11th; Richard Clarke quoted him, "We are at war...any barriers in your way, they're gone...I don't care what the international lawyers say." The President signed a memo on February 7, 2002, declaring that the Geneva Conventions on prisoners of war did not apply to Al Qaeda or the Taliban.
... Torture punishes the innocent as well as the guilty; U.S. authorities acknowledge that the majority of tortured prisoners, whether in Afghanistan, Guantanamo, or Iraq will eventually be released, charged with no crime. Finally, torture is immoral; it takes the philosophy of "the ends justify the means" to an extreme with no limits - more than 100 detainees have died in U.S. custody. Torture is an aggressive, moral cancer.
Burnett also notes, "it is incongruous that America's leader in the war on terror is 'Christian' George Bush. The ethics of Jesus of Nazareth do not condone abuse such as torture. His Golden Rule is, 'Treat people in ways that you want them to treat you.'"
The idea that one should "do unto others" is absolutely fundamental to this debate -- The Oregonian editorializes that "Coercive treatment puts our own soldiers at risk by sparking retaliation -- and rationalizations for mistreating Americans -- when they fall into enemy hands. And the 'intel' that torture yields is unreliable. What people say under torture is tailored to suit their torturers, not the truth. Haven't we had enough misleading intelligence to suit us?" (The Oregonian is not alone in making these arguments.)
A recent Post story offers this explanation of the vice president's rationale for wanting the CIA exempted from the McCain Amendment constraints: "Cheney's camp says the United States does not torture captives, but believes the president needs nearly unfettered power to deal with terrorists to protect Americans. To preserve the president's flexibility, any measure that might impose constraints should be resisted."
Jeffrey H. Smith, writing in the Post, argues that it's not practical to make a distinction between treatment of prisoners by the military vs. by the CIA. They work side by side, he writes, and having them operate under two sets of rules would lead to confusion, especially among less experienced military personnel.
The Oregonian editorial board agrees that the confusion must be resolved. "The soldiers [in Iraq] described an ambiguous environment that yellow-lighted abuse. They crave a red light, and the Senate ban would impose it. Cheney's loophole would further tarnish the nation by flashing a green light for torture."
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