Torture Memos

One of the critiques of higher education is that it is removed from reality.  The real world of policymaking does not have the luxury of reflective thought and long deliberation, but instead must act based on training, intuition, and the facts on hand.  However, rationality and training must also be guided by morals and ethical considerations.  Ethics must be a fundamental part of policymaking and analysis.  Today, this post will use the position of the ivory tower as an advantage for reflecting on the policy decisions that led the United States of America to practice enhanced interrogation on individuals taken from the Middle East.

The issue of treatment of captives cannot, in my opinion, be ignored.  Their treatment was determined by our elected US government.  Officials conferred and decided.  Why?  How did that decision get made?  What were the alternatives and were those debated?  Ignoring these questions fails to let us, as future policymakers, analysts, and public administrators, learn from this critical lapse in ethical thinking.

I find this topic fascinating, and terrifying.  I am by no means an expert, however, so examine your own history before making conclusions.  How would (could) someone have reshaped the debate?  Where does the strength for standing up and questioning the ethical implications of submitting individuals to abuse come from?

The memoranda circulated among top policymakers after September 11th showed the White House debates on the legal nature of the captives detained in the Middle East conflicts.  Many of the captives (al Qaeda) were neither state-actors nor civilians.  State-actors and civilians are clearly protected by the Geneva Conventions (Geneva), of which the US is a member.  John Yoo, Deputy Assistant Attorney General in the Department of Justice, wrote that, since al Qaeda and the Taliban were outside these classifications and thus not protected by Geneva.

Yoo’s legal opinion in January, 2002, focused solely on the authorities and requirements, in effect clarifying whether the US – either soldiers or top officials – could be prosecuted for any aggressive treatment of detainees.  He concluded that Afghanistan classified as a non-functioning State and therefore not capable of maintaining international norms, such as Geneva.  (This conclusion is simply incorrect, according to memos written by Colin Powell, the Secretary of State, and William Taft IV, the State Department Counsel.)  The Taliban were more a non-governmental organization than a government, according to Yoo.  These distinctions, while possibly small, gave the US legal room to avoid the general guidelines in Geneva.

Further flexibility, shown in former President George Bush’s declaration and Roberto Gonzales’ memorandum, arises from the President’s ultimate authority under the Constitution to suspend Geneva (as with any treaty), as necessary.  These documents posit, understandably, that legal determinations in the US derive primarily from US law and secondarily from international law.  The State Department memos amend this position: Powell disregarded the risk of domestic or international prosecution – especially if the US acknowledges the treaty remains in effect and thus not needlessly upsetting international community.

The above memos set the US apart from the obligations under Geneva clearly and articulately.  If they are correct that (1) the US has primary authority over its military, (2) al Qaeda members are neither military nor civilians, and (3) the Taliban is more non-governmental than a party in control of a country, then perhaps no international standards apply directly to this situation.  But obviously the purpose of the treaties is to protect captives on both sides of any conflict (Article 2: between two states; Article 3: between a state and a non-international actor).  No US soldier should be subject to torture or murder once captured (period).  Likewise, the US should treat detainees humanely – maintaining the purpose of the treaties made after World War II.

There cannot be compromise here if both sides – as people as well as combatants – expect to receive humane treatment once captured.  Powell and Taft point this out, albeit somewhat weakly: flexibility for aggressive interrogation threatens the security of our troops.  However, the argument is completely shifted by the legal questions framed by an assumption that harsher treatment means more valuable intelligence and information.  If there were time (these issues have been posed before, so this is no excuse), an analysis of this assumption would, I suspect, show the benefits are far outweighed by the costs to general security.  Faced with indefinite internment and continued, violent treatment, most individuals would say anything to ease their detainment, regardless of the truth.

Finally, individual rights and liberties do not stand opposed to national security.  The argument that we are in a new type of war, a shift to a new paradigm of waging war – as Gonzales stated in his memo, does not overcome our commitment to human rights.  History does not restart after a traumatic event.  While September 11th did require reevaluating policies and procedures, dropping a major tenant of international rules of war – let alone our country’s values – is disturbingly unjustified.

Most importantly, the memoranda miss (and misdirect from) the fundamental questions of why.  This seems to be either a political science question or a policy question (of efficiency).  Perhaps these disciplines should intercede in the legal debates described above.  The litany of reasons against torture (and further) should shift the question towards broader political and democratic problems – can we sacrifice many individuals to torture and create a climate of fear and intolerance?  For torture?  How can we keep our ethical standards, as future policymakers, analysts, and public administrators, and learn from these memos?


About Nate

Graduate student at University of Wisconsin-Madison. I am studying public policy, administration, and law. More importantly, I am getting the La Follette School Student Association out and onto the blogosphere. Here we come!
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