Friday, November 11, 2005

Senator McCain and Torture

Wretchard at the Belmont Club has made an open post asking questions on the McCain Admendment restricting torture. He includes the text and related links.

A long time ago, I presented my opnion on Torture which bears repeating. The comments below I posted as a contribution to Wretchards discussion.

The GWOT torture presents an opportunity that would not appear in a
conventional war. In a conventional war one would capture a 100 or so prisoners
and a reasonable percentage will blab without any pressure. There is no point in
torturing the rest for duplicate information. Officers and technitions with
valuable information are not allowed near the front. In the GWOT because other
means of information are less usable, a single prisoner can be potential source of
major information. Is this a justification for torture?

I would say not.

There are several minor points against the use of torture and I would say a
big one.


It is not very reliable. The subject is inclined to say what will end the
session, i.e. what they think the interrogator expects to hear. The interrogator
quite possibly does not have the means to sort this out. Since it is what the
interrogator expects to hear they will give it little challenge.

Usually the prisoner will talk without torture sooner or later.

It opens our soldiers to retaliation in kind. Even if the
current enemy does not a future one may do so.

It gives a motive to enemy personnel not to surrender, increasing our

Allowing torture and similar activities tends to break down military
discipline. Having allowed it in one case it is much harder to expect orders not
to do similar things to be obeyed in other cases.

If it becomes public it creates a terrific public affairs problem and
invites outside intervention into the running of our armed forces.

The Major Problem.

If we allow torture then we will sink to the level of Osma bin Laden and
his scum. Even when bin Laden loses (which he will in any case) we will lose
even more!


Jon Holdaway writing in Phil Carters Intel Dump that the admendment is another case of

. . . bad cases make bad law, and this is a prime example. Congress' desire to get its arm around the detainee abuse scandals is understandable, but to shift from its oversight role to its lawmaking role in order to fix the problem is not the approach to take. Statutes, by their nature, are like using a chain saw to do brain surgery, especially in an esoteric and complicated area such as interrogations.

The key paragraph of the law states:

(a) IN GENERAL.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

It seems to me that Senator McCains staff did not do much research.

Field manuals are usually cited by number (FM-XX) and date as well as title. So what is being refered to here? Can the Secretary of the Army change the law by amending the Field Manual? I suppose the courts will hold to the version in effect on the date of passage, hoping there aren’t two field manauals that address the issue. In any case it is usually considered good pratice for in items central to a law regulation or such to copy the text into the document rather than include something by referance.

A field manual is technically a recommendation not an order. The manual is written as reccomendations to approachs among legal techniques, not as a list of what is legal or not. Holdaway gives good review of the problems this will cause.

Is this to be part of Title X (Department of Defense) or XVIII (Criminal) of the Federal Code. Following the link back to Wretchards source the orgianal states At the appropriate place, insert the following: Since it does not list sanctions it is probably intended for Title X. If it were part of Title XVIII then any civilian official who violates the action the section would face criminal prosecution. If it is under Title X only military personnel would be subject to this criminal action under Article 92(1) (Disobeying a general order) or Article 134 (Conduct Prejudicial.) I would think that a law of this type should carry sanctions for everyone involved. This will leave the little guys holding the bag for directives that the higher up assured were legal.

The amendment is that it is worded so as not to interfere in normal criminal prosecutions, and to define prohibited actions in terms that follow existing case law. Not having either of these would cause intolerable amounts of confusion. But Holdaway points out this could import criminal procedure into POW interrogation procedures. A POW is not normally being interrogated with intent to prosecute; criminal procedure would at best be irrelevant.

I have no use for torture, but laws writen for public relations usually turn out to cause more problems than the solve. This could very well turn out like the “War Powers Act” which actully gives the President more war powers than he had previously, the exact opposite of the authors intent.

Cross posted to Wretcherds post.

UPDATE November 13,2005:

Wretchard made a follow up post. He writes:

I'm going to make a personal prediction. The number of incidents involving the torture of terrorist suspects will increase after the McCain Amendment, or something like it, is passed. There will be a fall in the number of interrogation incidents in US custody. It may even become zero. However, there will be a corresponding increase in torture incidents involving agencies of other governments, including European governments, all of whom will fully subscribe to every piece of human rights legislation which can be imagined, but who in practice will simply do what they want.

I don’t think that was going very far out on a limb.

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