Guantanamo, Torture and Due Process: Part I

(I copied this post from my blog at campaignforliberty.com because I am working on a follow-up and it needs the background for the sake of coherence.)

Of all the political positions that tend to be arbitrarily labeled "right-wing" or "conservative" by the mindless mainstream these days, support for "Club Gitmo" (and the detention and intelligence gathering systems it has come to represent) is surely one of the most inexplicable, not to say inexcusable. While many self described libertarians (including those of us in the GOP) are well aware that there is anything but unanimity in the military and intelligence communities on the Guantanamo issue, most rank and file conservative Republicans view opposition to this government's handling of terror "suspects" as disloyalty bordering on treason.

Even on the issue of torture (now euphemistically called "enhanced interrogation techniques), those relatively few conservatives who do not embrace its alleged usefulness still tend to rely on arguments that skirt the real problem. I recently heard a sermon delivered by a PCA minister for whom I have great respect to a group of military personnel and their families, in which he objected to torture on the grounds that it dehumanizes those who engage in it and lowers "us" to "their" level - they, of course, meaning terrorists. Essentially, he argued that torture is immoral and "isn't us" - therefore we should not rely on it.

This is true, of course: torture, like indefinite detention and war in general, brings out and fosters the worst in human nature. But rejecting torture solely on such grounds fails to address the other fundamental problems with coercive interrogation. One of those problems is that torture and other forms of coercive interrogation have been extremely effective throughout history at producing false confessions, but not accurate intelligence. There is an important difference between inducing a suspect to talk and inducing him to be honest, and the more intense the pressure to talk becomes, the more likely the suspect is to say what he thinks will relieve the pressure.

Significantly, many of the torture methods employed by this and the last administrations in the "war on terror" were borrowed from the military's SERE training program. SERE was developed during the Cold War to prepare American aviators for the treatment they would likely suffer if captured by a Communist military. The interrogation techniques used during SERE training, including waterboarding, smoke inhalation, sleep deprivation, prolonged stress positions, and other cruel and humiliating treatments, were all known methods of interrogation used by the Soviets and their allies. What should be painfully obvious to anyone familiar with the interrogation of captured Americans during the Korean and Vietnam wars is that these methods were used primarily for the purpose of extorting false confessions. While pilots like Red McDaniel and John McCain were also questioned regarding intelligence and technology, the primary focus of their interrogations was to get them to admit to war crimes. And while little useful intelligence was ever gained by the torture of American pilots in Vietnam, many false confessions were obtained and circulated around the world.

Similarly, during the Iranian hostage crisis, some of the American hostages were subjected to much milder forms of coercive interrogation, and while their treatment was not nearly as harsh as the standards adopted by the Bush administration and continued under Obama, it nevertheless resulted in several false confessions. One hostage famously confessed to being "in charge of wheat mold," leading the gullible students questioning him to announce to the world details of an American plot to starve Iranian families by molding the bread in their cupboards.

The problem of false confessions leads us to what I believe is the central problem with our entire approach to the detention and interrogation of terror suspects. When libertarians argue that terrorists should be tried in the criminal court system like other criminals, the usual objection is that as foreign "enemy combatants," they aren't entitled to the legal protections and due process of the American judicial system. The idea seems to be that, unlike rapists, murderers, mob hit men and other privileged persons, the terrorist doesn't deserve due process. He's evil, so we should just take him out with a drone, but sometimes we capture him so we can talk to him first. In either case, he has no rights, so it doesn't matter what we do with him.

As any thinking person will observe, this line of argument takes for granted that the detainee is a terrorist. There is not the slightest allowance for the possibility that he may be an innocent individual. He was picked up on the battlefield, right? No chance of a mistake there. One is left to wonder why there should be any trial at all?

This is the fundamental misunderstanding of most conservatives. The legal protections we call due process are not there because criminals of any sort deserve them; they are there because innocent people deserve them. They are not designed to clog the legal system and to slow the wheels of justice; they are designed to make sure that justice is indeed served. The tragedy of Guantanamo is not that would-be terrorists are locked up there, but that we have absolutely no reason to believe that the majority of our fellow creatures who are locked up there really are would-be terrorists.

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