Thursday, 24 April 2008

An Odd Line

Thanks to dday over at Hullabaloo I got to read an exchange between a Daily Kos diarist and fiend-in-human-form John Ashcroft from a college Q&A on Tuesday night. Much of what he said has already been ripped apart. Deservedly so, too; I like to hear conservatives make arguments so that I can try and counter them, but Ashcroft didn't actually put forward arguments, he just ridiculed or sidelined every tough question he got.

There was one thing, though, that neither dday nor Elsinora (the Kossack in question) tackled (maybe because it was just too depressing to unpick) the way I would have, which was this exchange ("me", of course, refers to Elsinora):
ME: After WWII, the Tokyo Tribunal was basically the Nuremberg Trials for Japan. Many Japanese leaders were put on trial for war crimes and crimes against humanity, including torture. And among the tortures listed was the "water treatment," which we nowadays call waterboarding...
ASHCROFT: (interrupting) This is a speech, not a question. I don't mind, but it's not a question.
ME: It will be, sir, just give me a moment. The judgment describes this water treatment, and I quote, "the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." One man, Yukio Asano, was sentenced to fifteen years hard labor by the allies for waterboarding American troops to obtain information. Since Yukio Asano was trying to get information to help defend his country--exactly what you, Mr. Ashcroft, say is acceptible for Americans to do--do you believe that his sentence was unjust? (boisterous applause and shouts of "Good question!")
ASHCROFT: (angrily) Now, listen here. You're comparing apples and oranges, apples and oranges. We don't do anything like what you described.
ME: I'm sorry, I was under the impression that we still use the method of putting a cloth over someone's face and pouring water down their throat...
ASHCROFT: (interrupting, red-faced, shouting) Pouring! Pouring! Did you hear what she said? "Putting a cloth over someone's face and pouring water on them." That's not what you said before! Read that again, what you said before!
ME: Sir, other reports of the time say...
ASHCROFT: (shouting) Read what you said before! (cries of "Answer her fucking question!" from the audience) Read it!
ME: (firmly) Mr. Ashcroft, please answer the question.
ASHCROFT: (shouting) Read it back!
ME: "The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach."
ASHCROFT: (shouting) You hear that? You hear it? "Forced!" If you can't tell the difference between forcing and pouring...does this college have an anatomy class? If you can't tell the difference between forcing and pouring...
ME: (firmly and loudly) Mr. Ashcroft, do you believe that Yukio Asano's sentence was unjust? Answer the question. (pause)
ASHCROFT: (more restrained) It's not a fair question; there's no comparison. Next question! (loud chorus of boos from the audience)
dday points out that this is muddying a clear precedent. My argument would be more damning that that. I think that even if Ashcroft is right, and there is a difference between "forcing" and "pouring", which is ridiculous stance to take, but never mind (I guess Ashcroft isn't using "forcing" in the sense of "entering without permission" so much as "using force beyond that which is supplied by gravity"; one can only assume he'd be fine with holding a person upright and pumping water into their mouths and nostrils at a rate consistent with the flow of water downhill), he is still implicitly making the case (by refusing to either admit either that current tactics are bad or that the Japanese gentleman in question was unjustly punished), that a fractional change in the velocity of the water used should genuinely make the difference between morally justifiable and punishable by a decade and a half of hard labour.

So my question (this wasn't a speech either) is this. Can anyone out there think of a situation in which such a tiny difference (i.e. a rate of flow greater than the terminal velocity of a water stream) in methodology can suddenly change the legal and moral into the illegal and harshly punished?

Update: Yes, I promised something lighter, and delivered torture. I am not always to be trusted.


cpcarrot said...

I shall leave my first comment on the board 1st to say sorry to hear about Dr P, I’ll admit to not knowing much about “quasi-stationary distributions", but I know you liked her and I’m sorry to hear about her passing.

2nd, just to stay on topic with your post, examples where a tiny difference in methodology can suddenly change the legal and moral into the illegal and harshly punished:

Drink Driving – The difference between having 80ml of alcohol per litre of blood and having 81ml.

A lot of law and morals involves lines, and while in some cases they are blurred, in others they are quite literally a line. One side you’re a moral legal citizen, the other you’re a criminal. Different people have different moral lines and different legal lines but the point still remains.

I would however agree that it is a bad argument put across by Mr Ashcroft, as (at least as far as I am concerned) the moral argument is not centred around what particular brand of torture is utilised but rather the use of torture itself and if it can be justified for a particular purpose.

First of all you have to ask the question. What is torture? General definition is any purposeful act, which inflicts pain or suffering, either mental or physical, on a person as a means to achieve an end. Now the concept is incredibly wide and can include many things people (and governments) generally find acceptable. Is imprisoning someone torture? Certainly fits the definition, and is used routinely as a punishment. How about the imprisoning of someone with severe claustrophobia? Or some other form of mental condition that would mean imprisonment would cause great mental suffering? How about a mother imprisoned no longer being able to see her kids? As part of our Police Officer Safety Training we are taught techniques that involve the use of “pain compliance”, essentially the utilisation of very painful pressure points to persuade the suspect to do what we tell them to. This is certainly torture, we are inflicting physical pain in order to make someone comply to our demands. It may well be designed to ensure our safety and theirs but it still fits the definition. When riot cops deploy tear gas they are inflicting indiscriminate suffering on a large number of people in an effort to make them do what they want. Is this mass torture acceptable?

Looking at more serious cases, is it right or wrong to use torture to save someone’s life? An interesting question. By our laws there is a right to kill in the defence of self or in the defence of others. Armed police officers will shoot a dangerous suspect dead if it is felt that doing so will save the lives of others. This is perfectly legal, you can decide for yourself if you feel it is morally right or wrong, but the majority of people do believe that it is acceptable when all other options are expended to kill in the defence of others. Now in view of that, what about torture? Surely the taking of someone’s life is a more serious measure than any form of torture? Death is pretty final, torture at least has the potential to be recovered from and a chance to make amends if mistakes are made. What choice would you pick if the two options were to inflict pain on a person or to kill that same person? I certainly would pick pain over death if I were the victim. Would the inflicters view be different? So if killing in defence of others is acceptable, surely inflicting torture, while far from ideal, if in defence of others has got to be treated on at least an equal footing. Otherwise we are saying that the killing of another should be treated with less severity than the infliction of pain, which (at least to me) doesn’t make a lot of sense.

It’s the age-old question, do the ends justify the means? Society as a rule accepts that one person being killed to save thousands is acceptable. One would assume that they would therefore accept one person being tortured to save the lives of thousands. Consider the role of the interrogator, who faced with an individual who possesses information that, would save the lives of a thousand people but will not tell him. If he knows that the use of a particular technique will make the individual tell him that information he then has to make the decision on if he should use it. He has to make a choice that on one-hand results in the death of a thousand people and on the other involves some breach of that individual’s rights. What if the technique was as simple as shouting abuse at the person? Is that acceptable? How about using sleep deprivation? Solitary confinement? If “water-boarding” was the only solution that was believed would work, is it acceptable then, if it will save those lives? He has to make a choice, and even doing nothing is a choice, a choice in this case to sacrifice the lives of a thousand people in exchange for keeping that individual’s rights intact. Is that the right choice? In the big picture it certainly doesn’t seem so, one thousand lives and their right to life gone, or one individual enduring some suffering. If I was one of the thousand I know which way I would like the interrogator to decide, I would be thinking of my rights to live!

Fortunately situations like this are fairly few and far between, however similar scenarios do actually occur. Kidnapping cases where the kidnapped individual is still outstanding and the kidnaper is caught do happen. If the kidnaper will not talk and that individual is slowly starving to death, what lengths should we go to in order to get the criminal to tell us where they are and save her life?

Do I like the idea of torture? No. Do I think whenever it gets used, it tends to be abused? Yep. Unfortunately we live in an imperfect world and we therefore have imperfect solutions. It should never be encouraged and should be seen as one of the last resorts, but you will always get those situations where there is no black and white solution and the best shade of grey available may involve doing something we ideally don’t want to do. I think it is important to remember that inaction is a choice as well. If we do nothing, we have chosen to do nothing. We can’t simply wash our hands by not making a choice. We may not like the choices given but we still are always forced to chose and all you can try and do is stick to your own moral compass and aim for the best possible outcome. The best our government can try and do is apply a bit of common sense to what situations do arise, make sure there is proper due process and do everything they can to avoid these situations arising in the first place.

Oh and view on the “water-boarding” of prisoners. Difficult to express a proper view, as no one knows what those doing it know, and there could be factors we are unaware of, but from what I do know I think it is too far. They appear to be using it as a routine method of extracting unspecific information, which in my view is unjustified. But I am just one man without the full facts of the case.

One final point, the case quoted by Elsinora, while good in respect of how it was utilised to make Mr Ashford’s case seem indefensible, does not really settle matters. The case in question was following a war, the biggest war our world has ever known and the justice was being measured out by the victors. If Japan had won the war maybe Yukio Asano would have been an honoured hero. How many examples of the Allies using torture or criminal methods were ignored because they won? The dropping of the Atomic bombs, was that all right? Of course Mr Asano was treated harshly he was on the losing side! If his own government were judging him they would have an entirely different view. It is impossible to make unbiased judgements on cases like that.

Pause said...

As of right now, I'm in no way equipped to get involved in this debate properly, nor do I wish to lean one way or the other with this sparse comment. But I would like to note the inherent danger in comparing torture to a police- or self-defence killing designed to save lives. The vast difference is that one is a spur of the moment choice, the other is premeditated.

An at-least-equally valid comparison would therefore be comparison to the death penalty, which is the government-sanctioned taking of a life through premeditated means. Ultimately of course that's just as worthless, because (barring some strange situation where, for example, cult followers made the execution of a leader a highly complex process) the sanctioned and premeditated act of taking a life never saved anybody else's (assuming the alternative of full life - and possible solitary - imprisonment and the removal of that individual from possibly causing harm to others). The truth is there is no totally applicable comparison, which is why it's a grey area with its own set of moral issues.

Jamie said...

As a supplement to pause's post, I would also like to note the inherent unreliability of torture as a means of extracting information. Cpcarrot, you are explicitly implying in much of your post that once torture is utilised, it is somewhat of a fait accompli that the information desired will be forthcoming from the victim: 'If he knows that the use of a particular technique will make the individual tell him that information he then has to make the decision on if he should use it.' That is a huge simplification; if torture were so reliable, I think that the arguments in favour of it in extreme circumstances might hold some water, but it simply is not the case.

I think that your definition of torture is rather broad and, as a result, not all that useful. For such discussions you would probably do well to see the definition of the United Nations Convention Against Torture:

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

SpaceSquid said...

I suspected someone would say drink driving. That isn't quite what I meant. I get that 80ml is legal and 81ml is illegal, but I don't accept that that makes 80ml perfectly OK and 81ml punishable to the degree I mentioned (say 81ml equates to one pint, for example; if drinking the whole pint makes you unsafe to drive it's unlikely you could drain 89% of it and not have anyone point out it might be a bad idea). I understand that certain laws have what are in some ways arbitrary lines, but the leap across it isn't to nearly the extent of this example.

The rest of your comment makes for interesting reading, and Pause and jamie have raised some of the points I would have (and more of their own). I didn't really want to get into a discussion of whether torture is justified, or useful, or whatever, I just wanted to highlight the fact that the Republican party line on this is ridiculous on its own terms. If Ashcroft had essentially said what you have, then I would disagree with a good deal of it, but I would at least respect it as a coherent position. But what we have heere is a man saying "This is morally justifiable, but I won't tell you if I've signed off on it, and I won't accept that means a mistake was made punishing non-Americans for it in the past". The first is pure cowardice. The second is, as I say, drawing an arbitrary line (which, as you point out and I've acknowledged, is just the way the law works sometimes) and claiming the two sides are vastly disparate. If he had chosen to say, as you have, that this guy just ended up on the crappy end of a war, then that's at least a consistent point (well, it's actually an acknowledgement that post-war justice is inherently inconsistent, but it's a reasonable observation, if not necessarily a reasonable excuse). It's the argument that it was a fair punishment, but that the CIA are entirely innocent, that pisses me off. Ashcroft won't budge from "the US can do this" or from "the enemy cannot do this", and the only way to do it is suggest "pour" and "force" are massively far apart.

Oh, and thanks for your comment on Dr P. She could be Hell to work with, but I respected her a great deal.

cpcarrot said...

The space squid is going to be surprised when he looks at his board, ah well...

The difference between premeditated and spur of the moment choices? I understand your point, but as with everything concerning this sort of debate, it is never that simple. Police or self-defense killing designed to save lives are not always spur of the moment choices, they are often thought out well in advance and premeditated. Police marksman can be called upon to take shots once their superiors have made a decision that it is necessary. This isn’t reacting to an imminent threat, this is people sitting in a room, thinking through the problem and deciding that the only solution is to take someone else's life. The very fact that Authorized Firearms Officers exist is the government accepting the fact (in advance) that they will be utilized to take lives when required to do so.

The inherent unreliability of torture - Yep I agree torture as a rule, not the best of interrogation techniques. It tends to result in answers just to avoid further torture. Utterly useless in terms of getting general info, confessions, things of that nature, as you will always get an answer slanted towards what that person thinks you want to hear. It is however effective if you are after very specific information that can then be verified. A location for example, which can then be visited to confirm, the movie favorite of a code which can be checked, that sort of thing. All interrogation techniques are based on the idea of getting the subject to want to tell you the information you seek, either through making giving that information seem like the best option (carrot approach) or though making the alternatives seem much worse (stick approach). All interrogation techniques suffer from the same problem, in that by doing this you are likely to simply get the suspect to tell you what you want to hear. Information gained by interrogation, regardless of the techniques used, are only useful if they can be independently verified.

As to the United Nations Convention Against Torture definition, I am familiar with it, but never really considered it a good definition, largely because of the final line:

“It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”

So provided a country has passed a law allowing said pain, suffering, that means it doesn’t get counted as torture? Certainly not in my view. The passing of a law does not necessarily change something from being morally wrong to morally right. If the UK passed a law allowing water-boarding to be used as a punishment for certain crimes it would still (at least in my book) be torture. What you have to remember about the definition contained within that Convention is that it actually starts with:

“For the purposes of this Convention, the term “torture” means any act by which...”

Note the words “ For the purposes of this Convention”. As with all legal definitions they don’t necessarily equate to the common meaning of the word and are defined specifically for use within that document and supporting legislation. It is made specifically narrow in order to perform the purpose of the convention. In fact Article 1, paragraph 2 even mentions:

“2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.”

Thus actually admitting that broader views do exist and are perfectly acceptable.

In my view I am far more concerned about State sponsored torture than torture that is inflicted by individuals, hence my view that it is a bad definition.

cpcarrot said...

Darn spacesquid evidently posted as I was typing... Now I'll have to read his post too...

cpcarrot said...

Just as a follow up to Spacesquid. I would agree his position make no sense and is classic Republican rubbish. The bit that annoys me the most is the way they say”It is morally justifiable” but then adopt the position that, just in case it in fact isn’t, won’t tell you if he’s signed off on it. People making these decisions need to stand up and be counted.

I was given a very simple memory aid for whenever you have an action that you are unsure if it is right and it is that you must have a PLAN.

Your action must be:

Proportional, it must have a
Legal basis, you must be
Accountable, and it must be

Accountable being the important element here. If you have to make these tough decisions, in crappy circumstances then fine. Someone has to make them. But you need to stand up and say “This is what I did”. Be accountable and responsible for your actions. Don’t go hiding because it might lose you some votes. That is not leadership! If you believe that you made the right choice, then admit to it.

SpaceSquid said...

Then in this one sub-argument, we can agree. We need to separate those whose positions we disagree with, and those whose positions are blatantly hypocritical. The morality and usefulness of torture I shall leave to others to refute.