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Torture and hypotheticals

Today the White House announced that waterboarding forced partial drowning is legal. As a measure to combat cognitive dissonance, they will presumably be derogating from the UN Convention against Torture in short order, since that treaty, as long as the US remains a signatory, is “the supreme law of the land” in America. The LA Times reports:

in remarks that were greeted with disbelief by some members of Congress and human rights groups, White House spokesman Tony Fratto said that waterboarding was a legal technique that could be employed again “under certain circumstances.”

Which circumstances might those be?

Fratto said the nation’s top intelligence officials “didn’t rule anything out” during congressional testimony Tuesday on CIA interrogation methods, and he indicated that Bush might consider reauthorizing waterboarding or other harsh techniques in extreme cases, such as when there is “belief that an attack might be imminent.”

Hang on. Doesn’t this seem like a rather bold downgrading of the conditions for torture that torture-lovers always describe? The standard “ticking-bomb” scenario is that we know the torturee knows the location of a bomb we know is going to go off. And yet here, the White House spokesman happily announces that the newly “legal” form of torture that is forced partial drowning could be used if there is merely belief that an attack might be imminent. Probably best, then, to torture everyone at hand, every day. Just to be on the safe side. Well, America is lucky that if its next president is a Republican, he will be John McCain. But the White House PR flack said a further interesting thing:

The CIA is not currently authorized to use waterboarding, he said, adding that “we’re not going to be able to speculate on what might be the case in the future.”

We’re not going to be able to speculate? But wasn’t he just talking about some imaginary future in which there might be belief that an attack might be imminent? Isn’t that speculation about the future?

This systemwide official restriction of brain activity also seems strange given that justifications for torture (such as those periodically emitted by Alan Dershowitz) consist of nothing but speculation on what might be the case in the future, or rather in a fantasy quandary-ethics world of perfect knowledge. If you’re not going to speculate on what might be the case in the future, then ex hypothesi you’re not going to worry about acts of terrorism, still less fancy starting a war based on the spectre of biological and nuclear weapons; but more than that, you’re not even going to get insurance or buy stocks or write science-fiction novels or do any of a very big number of other things. Speculating about what might be the case in the future is what a vast range of human pursuits exactly involve. But the word speculate, evidently, is carefully chosen for its negative connotation of gambling (financial speculators) or some otherwise reckless character, in order to denigrate Unspeakily a phenomenon that is necessary to civilization. To conjugate:

I shoulder the grave responsibility of pre-empting the dangers of a changing world;

You employ consultants and make plans;

They speculate about what might be the case in the future.

Obviously, Fratto’s message is not “We’re not thinking about the future”, because that would be idiotic; rather, it is: “We’re not talking about the future to you, because we can’t be bothered to justify ourselves in any detail.”

By contrast, the British Home Secretary, Jacqui Smith, recently defended the government’s lust to lock people up without charge for 42 days not by dismissing mere “speculation” but by insisting that anything imaginable can and will come to pass. This too, in a different way, will have given succour to the lovers of pseudo-utilitarian torture-is-necessary fictions. As the Independent reported:

Ms Smith said the Government could not afford to “sit on our hands” in preparing for potential future risks – but denied she was legislating for a hypothetical situation. “We need to legislate now for that risk in the future,” she told BBC Radio 4’s Today programme. “It won’t be hypothetical if and when it occurs. We are not legislating now on the basis that we are bringing it in now for something that might happen in the future; we are bringing in a position for if it becomes unhypothetical.

But isn’t “if it becomes unhypothetical” itself a hypothetical? And do we not thus enter a sort of Borgesian infinite regress of hypotheticals, no longer sure of the distinction between fact and phantasy? Perhaps, indeed, this is the cunning intention. In their contrasting ways, the governments of the US and UK seem to want to shout down any rational talk about possible futures at all.

  1. 1  Russell Davies  February 8, 2008, 1:09 pm 

    The term ‘partial drowning’ seems to leave scope for the introduction of a new euphemism for death. Presumably, should the forced partial drowning go wrong, rather than saying that the torturee is dead he or she could be said to be a victim of ‘impartial drowning’.

  2. 2  hey zeus  February 8, 2008, 11:47 pm 

    i thought drowning was supposed to be a pleasant way to go, once you submit to your fate it’s supposed to go all dreamy and calm and you hear enya singing.

    if jack bauer gets a hold of me and partially drowns me til i tell him where his daughter is i’m just going to submit right at the start and move straight to the nice, floaty, sinky bit. i mean it’s not like they’d actually KILL anyone is it?


  3. 3  Jeff Strabone  February 9, 2008, 3:50 am 

    If you think that’s bad, be on the lookout for the transcript of U.S. Attorney General Michael Mukasey’s appearance at Thursday’s House Judiciary Committee hearing. He said that anyone who acts in accordance with a legal opinon issued by the Justice Department cannot be prosecuted, even if the opinion proves to be wrong. Implication: any administration that wants cover for wrongdoing can get the Justice Department to issue an opinion calling the desired act legal and then the government can conclude after the act has been committed that the opinion was wrong, and no one can be punished. This new legal doctrine is an all-purpose ‘Get out of jail free’ card.

  4. 4  Steven  February 9, 2008, 2:22 pm 

    Jeff, you are quite right; but in a sense this is merely a continuation of the administration’s long-standing position: “If we do it, it can’t be illegal.” Still, it’s useful to have it spelled out so publicly.

    Russell: impartial drowning is excellent. I love its almost Solomonic sense of disinterested justice.

  5. 5  lamentreat  February 9, 2008, 9:33 pm 

    Kind of a minor point, but “speculation” also has the ghostly adjective “airy” hanging around it. So the conjugation goes on a scale of heavy-to-light: laboring against gravity (ultra serious men, Atlases of our time, bearing the weight of the world), to gravity-neutral (the ordinary world of modern work), to the fluffy, lighter-than-air frivolity of speculation.

  6. 6  Pangloss  February 11, 2008, 4:01 am 

    The one doing the illegal act, on the basis of a legal opinion, may get away but the one issuing the legal opinion may meet bubba in Leavenworth or some other charming federal establisment in the future. See Scott Horton’s note on a Miami lawyer who DoJ HQ is prosecuting and think of Yoo et al:

  7. 7  Jherad  February 11, 2008, 3:12 pm 

    I dislike the term ‘simulated drowning’ which seems to have taken root in the MSM. From what I’ve read about waterboarding, there is nothing simulated about it – the drowning is real, excluding the death. Water enters the lungs, the body convulses etc. ‘Simulated’ seems to infer some kind of safe, sterile environment – like a computer simulation.

  8. 8  Russell Davies  February 11, 2008, 6:11 pm 

    Steven – glad you liked it.

  9. 9  Steven  February 11, 2008, 7:08 pm 

    Jherad – absolutely. It’s not simulated drowning, it’s drowning, except it stops before you die. (In theory.) I agree that newspaper reports that gloss it as something that “simulates the feeling of drowning” are culpably downplaying the issue.

  10. 10  Charles Reaves  February 12, 2008, 3:18 pm 

    Not only should we worry that the administration’s shift in torture authorization wording (that sounds too close for comfort to WMD-related program activties – I hope it’s not catching) has changed from when an attack “is” imminent to “might be” imminent, even imminent does not mean the same to the Bush administraton as it does to most English speakers.

    The US War Powers Act, which authorizes any President to use military force without a Declaration of War by Congress, requires the threat to national security to be imminent. In the normal definition of the word, there was zero imminent threat when Bush invaded Iraq. To this administration however, neither “soon” nor “likely” need be components of an imminent threat.

    Also, I found your observation interesting that if McCain becomes the next President he will end US torture (for those who may not know, McCain was tortured as a prisoner in Vietnam and for some strange reason now opposes its use on America’s prisoners). Taking that observation a bit further, it is clear that no matter which candidate is elected – Obama, Clinton or McCain – America’s humiliating dip into the ranks of torture-states will come to an end next November. Is that the Sun I see peeking over the eastern horizon?

  11. 11  Steven  February 12, 2008, 4:04 pm 

    Hi Charles,
    Indeed. (I wrote about the retrospective redefinition of “imminent” by Condoleezza Rice last year.)

    it is clear that no matter which candidate is elected – Obama, Clinton or McCain – America’s humiliating dip into the ranks of torture-states will come to an end next November. Is that the Sun I see peeking over the eastern horizon?

    Good point, and perhaps cause for hope. No wonder that the administration is suddenly in such a hurry to “try” and then execute some of the people it has been torturing.

  12. 12  richard  February 13, 2008, 3:07 pm 

    dip into the ranks of torture-states will come to an end next November

    This sounds over-hopeful to me. I think we can look forward to torture being slightly better concealed, and perhaps more thoroughly outsourced.

  13. 13  ukliberty  February 13, 2008, 7:33 pm 

    Antonin Scalia on torture (Law in Action podcast, 4 minutes in).

    Someone elsewhere on the web compared the ticking bomb scenario to George Bernard Shaw’s joke with a socialite about having sex for money.

  14. 14  Steven  February 14, 2008, 10:40 am 

    I think we can look forward to torture being slightly better concealed, and perhaps more thoroughly outsourced.

    You may be right to be more sceptical. As I have been reminded elsewhere, McCain did vote for the Military Commissions Act.

    ukliberty, thanks for the link to Scalia’s latest crazy rant.

  15. 15  Charles Reaves  February 14, 2008, 1:37 pm 

    This sounds over-hopeful to me. I think we can look forward to torture being slightly better concealed, and perhaps more thoroughly outsourced.

    For many years optimism of any sort has been a lost cause under this administration and so I understand your cynicism. It is easy to forget that there was an America before Bush. Torture as national policy was unthinkable to most Americans before it was introduced by Bush/Cheney. We must remember that deceit, lies, propaganda and secret programs are not inherent to the office of President – they are merely central to the Bush/Cheney presidency. As evidence I offer the unmistakable sense of relief across the country, and even across party lines, that this administration is finally, finally coming to an end.

    Yes, I am hopeful that most of the far right policies of this administration will prove unsustainable once the Presidential bully pulpit of fear is lost to the neocons. And even though McCain is further right politically than I care for, he is no noecon.

  16. 16  Steven  February 14, 2008, 1:53 pm 

    Still, McCain did vote against the Senate’s decision yesterday to restrict interrogation procedures to what is explicitly allowed in the Army Field Manual.

    “We always supported allowing the CIA to use extra measures,” McCain said. “I believe waterboarding is illegal and should be banned.”

    Hmmm, so forced partial drowning should be banned. But extra measures should nonetheless be allowed. What exactly are those extra measures McCain has in mind, that are not authorized by the Army Field Manual, and which led him to vote against the bill?

  17. 17  john b  February 14, 2008, 2:50 pm 

    No wonder that the administration is suddenly in such a hurry to “try” and then execute some of the people it has been torturing.

    Perhaps they mean “try *to* execute”; surely even the Bush administration wouldn’t pretend that the Guantanamo prisoners are going to get some kind of legal due process…

  18. 18  Charles Reaves  February 14, 2008, 3:42 pm 

    How did I ever get myself in the predicament of defending a Republican candidate? Yuck.

    I wouldn’t read too much into McCain’s vote yesterday, or his “extra measures” statement – it was pure politics. McCain knew in advance that the bill containing the amendment to restrict CIA techniques was going to pass no matter how he voted, so his negative vote was simply a bone thrown to the powerful right wing of his party. He is desperate to gain their support in the upcoming election, and that vote put an entry stamp into his conservative passport without him actually having to cross into their ideological territory.

    By refusing to define “extra measures” he has artfully mollified the right without changing his long-standing and very personal opposition to torture. Unspeak works in both directions.

  19. 19  Jeff Strabone  February 15, 2008, 7:46 am 

    Yesterday the torture debate took a turn toward the silly. Steven Bradbury of the U.S. Office of Legal Counsel appeared before a House Juidiciary subcommittee and defended American waterboarding against comparisons to the Spanish Inquisition and Japanese ‘water torture’. Apparently, they used water differently. (Or did they just use different water?) Talking Points Memo has the story.

  20. 20  Steven  February 15, 2008, 10:39 am 

    Charles, that is plausible to a degree. But how could one ever tell in principle whether McCain’s actions since voting for MCA really were subtle positioning of this type or just him being as bad as the rest of them, except that he chooses to denounce the most notorious form of official torture so as also to appeal to liberals? Presumably he would act the same either way.

    On the other hand, couldn’t he yesterday have voted against the bill without also adding the heavy hint that he loves other kinds of torture, and would the vote in itself not have appeased the Republican torture-lovers sufficiently?

  21. 21  richard  February 21, 2008, 6:44 pm 

    Somehow I’d managed to miss, until now, that waterboarding is identical with the famed Japanese water torture and with the “bestial and barbarous” torture carried out by men of the Dutch East India Company on their counterparts in the English East India Company during the Amboyna Massacre of 1623, which fuelled anti-Dutch sentiment in England through 4 wars and 2 centuries. (see comments thread for informative post on Japanese use in Singapore)

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