Comments on: The OLC Memos

By: Landon Alger

Landon Alger — Wed, 28 Oct 2009 03:15:43 +0000

It seems to be fashionable to brush aside the issue of whether America has any justification to use harsh methods of interrogation — call it torture if you choose — on a very exclusive group of suspects captured under very particular circumstances.

I am just not comfortable comparing this fact pattern to the Hitler, Mao, or the like. America isn’t initiating a world conquest or breeding a master race — we are responding to terrorists who have expressed and exercised their intent to kill civilian Americans. If the state has the means to get valuable information from suspects, it has a duty to use those means to protect its citizens. Ultimately, this is a non-issue in a sovereign country.

By: Maryland Conservatarian

Maryland Conservatarian — Fri, 17 Apr 2009 20:24:02 +0000

for “Euphemism of the Year”, I have to believe Secretary Napolitano has it wrapped up with her lawyerly why-use-one-word-when-three-will-do “man-caused disasters”

By: Patrick S. O'Donnell

Patrick S. O'Donnell — Fri, 17 Apr 2009 17:37:33 +0000

Excellent points, all, but permit me to comment on the third: you’re absolutely right, and those that penned the laws against torture were well aware of the “necessity defense” as an oft-invoked justification, hence, as you state, the categorial ban (e.g., it is explicitly ruled out in the Geneva Conventions; as Larry May notes, this is a ‘clear-cut anti-utilitarian rule’). The “ticking time bomb” scenario/hypothetical is the exemplary case here, and the myriad problems associated with it have been discussed by Henry Shue, David Luban, Thomas P. Crocker, among others. Most recently and thoroughly, see Yuval Ginbar’s book, Why Not Torture Terrorists? Moral, Practical, and Legal Aspects of the ‘Ticking Bomb’ Justification of Torture (2008). See too Thomas P. Crocker’s ‘Overcoming Necessity; Torture and the State of Constitutional Culture,’ available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1116680, and the case *Public Committee Against Torture in Israel v. The State of Israel et al.,* (1999).

And the principle of “humane treatment” clearly trumps the principles of discrimination, proportionality, and necessity in international humanitarian law (IHL), at least upon a close reading of the Hague and Geneva Conventions, hence, for instance the significance of Common Art. III to the latter on “inhumane treatment.” I think May has it right: “In many ways, the principle of humane treatment in international law is the principle of due process in domestic law, in that both principles aim at treating everyone with a minimum of humanity.”

Among long-standing euphemisms for torture: “moderate physical pressure,” “enhanced interrogation,” “highly coercive interrogation,” and “pushed interrogation” (Please see Darius Rejali’s indispensable book, Torture and Democracy, 2007).