McCain Preaches in Gitmo Rag

In a currently online article from the November 21 issue of Newsweek (incidentally, the same publication that erred about Koran "abuse" at Gitmo and prints interesting overseas editions with titles like "The Day America Died"), Senator McCain, who has proposed an ill-advised law on torture, made his case for said law. Several things stand out to me.

(1) McCain makes exactly the kind of moral argument I thought he'd make.

But I do, respectfully, take issue with the position that the demands of this war require us to accord a lower station to the moral imperatives [italics mine] that should govern our conduct in war and peace when they come in conflict with the unyielding inhumanities of our vicious enemy.

[And, much later ...]

I don't mourn the loss of any terrorist's life. Nor do I care if in the course of serving their ignoble cause they suffer great harm. They have pledged their lives to the intentional destruction of innocent lives, and they have earned their terrible punishment in this life and the next. What I do mourn is what we lose when by official policy or official neglect we allow, confuse or encourage our soldiers to forget that best sense of ourselves, that which is our greatest strength--that we are different and better than our enemies [italics mine], that we fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are created equal and endowed by their Creator with inalienable rights.

In a reply to a commenter, I anticipated and replied to this argument when I wrote:

[Our] "pretend[ing] we're not really torturing" ... smacks of our nation's cold war era insistence that our big difference from the Soviet bloc was supposedly that we were religious. It's as if torture is inherently evil and that to differ from the enemy, we must abstain from it. Both fallacies are symptomatic of a failure to understand the real difference between our nation and its enemies, namely that our nation respects individual rights.

Many in Russia were and are religious (and communism a secular derivative of Christian altruism) and many in America are not religious at all. In this war, both sides have killed combatants and civilians alike. What's the difference? We are acting in self-defense. Any deaths we cause in this war and any torturing we have to do are a direct result of the fact that we are being threatened. Crucially, the blame for all deaths and suffering in this war lies with the terrorists.

If the moral difference between two sides in a war (when there is a good side) is that one side initiated force, this difference applies to torture just as much [as] to killing. The good side can perform such acts in the interest of self-defense.

(2) McCain advocates outlawing something he admits is hard to define.

In such an urgent and rare instance, an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted. But I don't believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis. It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America's purposes and practices.

And yet he says this right after conceding the following:

Part of our disagreement is definitional [italics mine]. Some view more coercive interrogation tactics as something short of torture but worry that they might be subject to challenge under the "no cruel, inhumane or degrading" standard. Others, including me, believe that both the prohibition on torture and the cruel, inhumane and degrading standard must remain intact. When we relax that standard, it is nearly unavoidable that some objectionable practices will be allowed as something less than torture because they do not risk life and limb or do not cause very serious physical pain.

What would be the lower limit on what is regarded as inhumane? I don't know, but the sound of a toilet flushing comes to mind.

Far better to admit that, faced as we are with a barbaric enemy, we may have to resort to torture, than to have to treat enemy combatants like they are American citizens in the tank for refusing breathlyzer tests.

(3) McCain makes another argument I should have anticipated: That our use of torture will "look bad" to other countries and will thus damage our cause in the war of ideas which is an important part of this war.

To prevail in this war we need more than victories on the battlefield. This is a war of ideas, a struggle to advance freedom in the face of terror in places where oppressive rule has bred the malevolence that creates terrorists. Prisoner abuses exact a terrible toll on us in this war of ideas. They inevitably become public, and when they do they threaten our moral standing, and expose us to false but widely disseminated charges that democracies are no more inherently idealistic and moral than other regimes. This is an existential fight, to be sure. If they could, Islamic extremists who resort to terror would destroy us utterly. But to defeat them we must prevail in our defense of American political values as well. The mistreatment of prisoners greatly injures that effort.

In a war of ideas, one wins not by accepting the enemy's premise and playing by his rules, but by surviving, and by articulating one's own ideas and making the case for them. Elsewhere in the piece, McCain admits that there is great debate about what constitutes torture. Indeed, recall that in the "torture" "scandal" at Gitmo, many were more concerned over how the Koran was being handled than about the relatively mild "abuses" to which the prisoners were subjected! This is exactly what happens when we fail to engage in the war of ideas. Rather than accept the premise that mishandling the Koran is wrong, Bush should have made it clear that the best way to protect one's Koran is not to engage America in war.

The vagueness of the definition of torture also illustrates the problems we can, and have, and will run into if we declare that we will not use torture under any condition. In addition, I have just explained why we, as a nation that has been attacked and is defending itself, may do whatever we have to do militarily to our enemies.

This includes torture. In fact, McCain implies that torture is contrary to our values as a people (just after the first paragraph I quoted):

Those of us who feel that in this war, as in past wars, Americans should not compromise our values must answer those Americans who believe that a less rigorous application of those values is regrettably necessary to prevail over a uniquely abhorrent and dangerous enemy.

But yet, we have resorted to torture in past wars. Mark Bowden at Opinion Journal points this out:

One of the myths of the American soldier is that he never mistreats a captured enemy. If our enemy dead had voices, a multitude would testify to having been summarily shot, tortured or otherwise abused in every war Americans ever fought. Some of the worst examples took place when Americans fought each other--almost 13,000 Union prisoners died of malnutrition, disease and exposure at Andersonville Prison in Sumter County, Ga. As a race, we are no worse, or better, than anyone else.

As a statement of fact, this is fine, but while McCain is willing to forgo an intelligence gathering method in the name of feeling morally superior (even though a foreign aggressor necessitates said method and is thus morally culpable for its use), Bowden makes just as bad an error: He is amoral. War is hell and demands measures that are not a part of civilized behavior. But to torture someone in order to, say, gather intelligence of defensive value after having been attacked is perfectly moral, unlike doing the same thing just for kicks, or to further the military objectives of an oppressive. Whatever we do to a captive in this war, we are acting morally, so long as the action is performed with a reasonable expectation that it could have military value. Furthermore, so long as we do not torture gratuitously, the use of torture in a war does not compromise our ideals.

And lest we muddy this issue by using the above example from the Civil War, let's take a more clear-cut example of torture (forcing a man to watch his comrades die), which even includes the execution of prisoners, courtesy of General Pershing in World War I:

Even Americans have dealt brutally with Islamic terror, and to good effect. In 1911 in the Philippines, our Gen. John J. Pershing arrested several of the most brutal Islamic terrorists of the day. They were found guilty of capital crimes and shot, but not before the bullets used by the firing squad were dipped in pig fat, thus denying them according to the rule of Islam a soft landing in Heaven. Pershing, however, did allow one of the terrorists to escape so that he might report his chums' fate to their superiors. Islamic terrorism ended. [Update: I have subsequently learned that this story may not be true.]

Should General Pershing have forbidden his soldiers to touch a hair of the heads of their captives and instead handed them Korans with gloved hands? How many American lives would have been sacrificed so that the likes of Senator McCain could feel morally superior?

Fighting a war entails a whole host of otherwise barbaric acts performed with one objective in mind: The most rapid incapacitation of one's enemy as possible. Again, whatever acts had to be done on the account of an aggressor are entirely that aggressor's fault. Period.

McCain not only glosses over our own nation's history, but over the need to take the context of an action into account when he condemns torture. These omissions cause us to risk overlooking the value of torture as a technique to use in warfare, and they cause us to accept unearned guilt -- both through an arbitrary moral injunction and the problems inherent in defining the "sin" -- that could sap our national resolve.

To say that this law would provide "aid and comfort to the enemy" would be a gross understatement.

(4) McCain incorrectly asserts that by not torturing our own prisoners, we will make our own troops safer.

While some enemies, and Al Qaeda surely, will never be bound by the principle of reciprocity, we should have concern for those Americans captured by more traditional enemies, if not in this war then in the next. Until about 1970, North Vietnam ignored its obligations not to mistreat the Americans they held prisoner, claiming that we were engaged in an unlawful war against them and thus not entitled to the protections of the Geneva Conventions. But when their abuses became widely known and incited unfavorable international attention, they substantially decreased their mistreatment of us.

We have just seen that torture can be used, with an enemy like al Qaeda, to curtail its barbaric activities. So why are we sacrificing the soldiers who are fighting in today's war for some unspecified later conflict? I am sure that the civilized nations with which we have signed the Geneva Convention will understand our behavior towards al Qaeda, which neither honors nor deserves adherence on our part to the Geneva Conventions.

In sum, McCain argues that we must ignore our own history, the possible military benefits of using torture (which are not confined to intelligence gathering), the fact that our enemy care not one jot about how we treat its prisoners (beyond any tactical advantage he may obtain by their being treated well), and the moral difference between ourselves and our enemy.

Instead, in the name of a vague and unargued "moral imperative", we are to needlessly sacrifice more soldiers, treasure, and civilians rather than using an undefined set of techniques called "torture". And despite his idealistic and patriotic-sounding language, he has so little faith in his President, our troops, and the American people that he feels the need not just to urge against torture, but to codify his moral qualms about "torture" into law. (Note that we already take great pains to ensure that our prisoners are not unnecessarily treated badly.)

I submit that when one sees the legislation of morality, one sees a moral code -- sacrifice -- that men will invariably run from when left free to do so. It is this freedom to act according to reason and against such a moral code that such laws are designed to render moot.

If indeed McCain agrees that "It is also quite fair to attribute the administration's position to [its] appropriate concern for acquiring actionable intelligence that could prevent attacks on our soldiers or our allies or on the American people." and that "... I don't believe this scenario requires us to write into law an exception to our treaty and moral obligations [We have none to al Qaeda. --ed] that would permit cruel, inhumane and degrading treatment," then it is far better to pass no law, and leave the conduct of this war to the President, as we have done for over two centuries to date.

Our criminal justice system, through the overzealous use of technicalities to protect the guilty, has been crippled by unscrupulous lawyers. So has our economy, through the abuse of liability law. Our war effort is already being hampered by the threat of litigation -- most famously back in 2001 when the CIA passed up a chance to kill Mullah Omar because of legal questions.

Why hamper the war effort even further by causing our President and our soldiers to have to decide whether doing the crime (of possibly saving lives) is worth the time?

-- CAV

Updates

2-20-06: Added update on Pershing.