Issue 5: Torture and The Person

Now that the torture memos have come out, the question is what to do. A thread that seems common in every good piece of journalism done on Bagram or Abu Ghraib, Taxi to the Dark Side or Standard Operating Procedure, and is underneath these memos, is that requiring soldiers to know the rules of war, and to disobey an illegal order, not only doesn't work, but provides cover for those who give those illegal orders (de facto if not de jure, and as far as I can tell, de jure anyway), and would, if it were implemented, actually endanger prisoners and soldiers by forcing them to second guess themselves in non-second-guessable locations like battlefields.

I'm not even arguing we do away with all culpability of soldiers or operatives, just eliminating the pockets of absolute prohibition that rings false in the act of warfare. This is a common mantra from infantry, and I'm convinced. As ideals, concepts like uniforms and Geneva seem easily asserted because they're framed as a preventative technique, a safety measure for our troops (cf. Joe Biden), when they're not, really, they make life much more dangerous and fraught for soldiers, intentionally. We're trying to endanger them so they can never become as safe as the Nazis were in their camps. But they've been put in a situation where even that logic is unworkable, as every conflict since Geneva has shown. I've been looking for it, but a CIA agent came out a couple of moths ago and said that we need to make torture illegal, but retain the cultural understanding that those who torture in ticking time bomb scenarios will be pardoned if they turn out to be correct. If a soldier or agent finds the situation so dire that they feel the need to torture, we can presume that the situation is serious or the soldier is seriously incorrect but well-meaning. In the first case, if the soldier can provide evidence, it seems that the principle of preventing greater crime would eliminate his direct culpability, in the second, his mistake would justifiably cost him. But sadism, the principle ostensibly being curbed by troop-level prosecutions doesn't seem like a common behavior to me.

Also, on top of this, I don't think that the traditional sense that punishments deter crime makes sense within a war. Training works, as I understand, "promoting a good culture", which just sounds to me like being in charge of your shit, supposedly works. But if we're talking about the military in violent, or seemingly violent, arenas, the plausibility of command failure seems too high to be effective. So shouldn't we just eliminate the culpability of soldiers, make it clear that they will be punished for acts they commit without an order, but instead instituting the death penalty for issuing torture memos?

Lastly, I think the Bybee memo, which is the only one I've read all the way through and the one with the most fireworks, reveals the flaw in the utilitarian arguments against torture, that it doesn't work or that it should only be done to save more lives. Bybee goes out of his way to restrict the repeated use of waterboarding and insect torture not because it's a violation of American law, but because its not as effective the fifth time around. They've been working, these deviant bastards, to create a torture that is effective, that does get positive results. It's the same thing they did with the ticking time bomb thought experiment; as soon as everyone had to consent to ticking-time bomb torture, it because the justification for every instance, even though there is no recorded instance ever. Even if it works, it's wrong, even if it's a ticking time bomb, it's wrong. A tragedy caused by due process is rare enough that we can swallow it when it happens; I can't swallow reading that the official position of the United States was to torture a wounded man.

So; End prosecution of agents and soldiers on the ground, raise the stakes for those who issues the orders? Why keep this archaic image of personal culpability?