Tuesday, June 24, 2008

War Crimes

More of the guilty.
The trial.

In a post on the bizarre and, frankly, nonsensical statements of Antonin Scalia regarding detainment, Marty Lederman points out a pattern in Bush administration detainment policies that is connected to what I've been saying about torture. (And Scalia himself unwittingly hints at it). Lederman writes,
In this conflict, by contrast, the U.S. has detained thousands of persons without very reliable assurances that they are, in fact, dangerous. Its detention practices, in other words, have been much more indiscriminate and uncertain -- and motivated principally by a design to interrogate as many persons as possible who might conceivably be able to offer some actionable intelligence, rather than (primarily) for the traditional purposes of incapacitating and weakening the enemy. When you're looking for a needle in a haystack, you tend to collect a lot of hay. That is exactly why the military itself has released such a high percent of the GTMO detainees: because its criteria for detention in the first instance were so permissive.
Recall that torture as information-gathering can work but entails a much broader institutionalization of torture and widespread torturing of innocents than that of the slippery-slope narrative frame the administration and its surrogates present to the public (that is, the one evil terrorist vs. the lives of hundreds or thousands). As I said in congressional testimony last year,
A principal incentive raised by the argument for torture as a means of gathering information... is ultimately to seek patterns of information rather than attempt to verify or falsify individual bits of data, especially under time and resource constraints. Comprehensive sets of data-points yield more complex patterns. The more extensive the practice and institution, the more successful torture will be. If torture is used indiscriminately and broadly, more complex patterns and a better understanding of what is meaningful in the information will be obtained. Patterns of information by themselves are meaningless, but they serve to corroborate and verify partial bits of information and infer other patterns. They also serve to eliminate or falsify outlying bits of information, the information gained from those innocent of any perceived wrongdoing. A descriptive narrative may be interpreted and assembled from the resulting patterns and regularities.
Note the common pattern between detainment and torture.


MT said...

The more extensive the practice and institution, the more successful torture will be.

"The more people I sleep with, the more fun I'll have" but I am free to pursue fun in other less problematic ways. It's a slippery slope, but achieving traction isn't out of the question, and really is just what being moral demands of one every day. Granted, given that a government is a loose collection of semi-independent agencies with very limited "consciousness" of its actions and their consequences, we might reasonably choose not to license it to pursue activities requiring great care and entailing great risks. But by analogy to having fun, we can make the education we have given ourselves by torturing somebody more valuable with information we may gather in all kinds of ways and not only by more torture--in principle, at least. Pursued as a last resort, torturing somebody just so happens typically to leave the state at last resort and disposed to torture somebody else. Would legalizing torture with a waiting period and/or an annual quota be moral?

MT said...

I read the so-called "Miranda" right to "remain silent" reflects detention having been construed by the Supremes as itself coercive in effect--at least for one facing the prospect of interrogation.