an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials.
The officials said the captive, Ibn al-Shaykh al-Libi, provided his most specific and elaborate accounts about ties between Iraq and Al Qaeda only after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition.
The new disclosure provides the first public evidence that bad intelligence on Iraq may have resulted partly from the administration's heavy reliance on third countries to carry out interrogations of Qaeda members and others detained as part of American counterterrorism efforts. The Bush administration used Mr. Libi's accounts as the basis for its prewar claims, now discredited, that ties between Iraq and Al Qaeda included training in explosives and chemical weapons.
The ticking time bomb scenario often used to justify torture generally assumes that we already know there is a ticking time bomb and that we must resort to torture to elicit necessary information to stop it without delay. The prior question, however, is where we got our understanding that there was a ticking time bomb in the first place. This story suggests that the perception that we had to go to war (our ticking time bomb) may have been generated by false information designed to escape torture (or cruel treatment), which, in turn, has led to the perceived necessity for additional cruelties. In this way falsity begets more falsity, evil begets more evil.
We are often told that cruel and inhuman treatment of prisoners is justified because it produces important information that saves lives. But how many more lives, one wonders, were destroyed because of the false information that cruel and inhuman treatment elicits? And what mistakes have we been making, even to this day, on the basis of information collected through renditions to other countries that practice torture, and by cruel and inhuman treatment of prisoners by our own personnel?
Thomas Jefferson, speaking of slavery, once said: "can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever."
Will the consequences of our sins someday be visited upon us? I, too, tremble for my country.
Did torture lead us into an unnecessary war or did Bush torture in order to come up with a justification for a war that he had already decided to start and that he would have started even if the torture hadn't worked?
What Henry said. Yglesias pointed this out a while back: torture works really well at getting the answers you want.
You believe in witches? The people you torture are gonna confess to being witches. You believe in an Iraq/al-Qaeda connection? The people you torture will confess to having fellated Saddam and Osama on the same occasion.
Given that Cheney had his mind made up, torture was an excellent way for him to get evidence to support his conclusions.
The testimony obtained from al-Libi was probably what the Bush administration wanted to hear. But it may also have been what a savvy Al Qaeda leader was glad to provide. There were good arguments in 2002 that an invasion of Iraq was bad for us and good for Al Qaeda. What has happened in Iraq since the invasion has added to those arguments.
The testimony didn't persuade the administration, but it helped to persuade the country to this unnecessary and unjust war.
"The officials said the captive, Ibn al-Shaykh al-Libi, provided his most specific and elaborate accounts about ties between Iraq and Al Qaeda only after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition."
How did Mr. al-Libi know what his interrogators wanted to hear? Were words put into his mouth to make the case for a Saddam-Osama connection? In short: How do interrogations under torture produce the desired result when the innocent victims have no clue of what they can say to stop the pain?
If, as I have read, the whole concept of torture, as applied by the US, is borrowed from the Soviet model (to get 100% conviction rate via confession) then the answer is obvious. At least the House of Lords recognizes this truth, and has not been bought off by the Bliar government.
Sadly I think the consequences of the sins are already upon your country. But the problem with reproof is that sometimes one is so indignant at the reproof that one cannot see that it was brought upon one's self, and any who try to say so are angrily denied.
I hope you don't mind me self-advertising, but I have an entry on my blog covering the history of articles relating to the al-Libi case. There is also another case where the threat of torture was enough for a detainee to fabricate parts of their statement.
"The prior question, however, is where we got our understanding that there was a ticking time bomb in the first place."
This gets at what American police who detain or arrest are supposed to be able to articulate before a neutral magistrate: Reasonable Suspicion and/or Probable Cause.
Steeped as I am in the tradition of law school, I was shocked to read Craig Lerner's (a George Mason University law professor) article "Reasonable Suspicion and Mere Hunches" (see e.g. Volokh cite here: http://volokh.com/posts/chain_1129122366.shtml). Lerner wants to toss the requirement for reasonable suspicion right out the window, so I took some pains to destroy his article here, on my Robosolders blog: http://www.girlrobot.com/blog/2005-10.htm#2005-10-24+13:39:57+1.
The Volokh post, BTW, was done by Todd Zywicki, a GMU law professor and colleague of Lerner's, who calls Lerner's article "brilliant" in something of a Mutual Admiration Society binge. I commented on Zywicki's post at Volokh, then e-mailed him about it, and was totally dissatisfied with his embarrassingly obfuscatory response; so I attacked it as well in updates to my original counter-post.
Apart from the much-bandied "ticking time bomb scenario", my readings of Military History suggest that in matters of guerilla and/or asymmetrical warfare, we simply cannot afford to adopt the high-minded policy of what Senator Lindsay Graham and others, especially liberals, suggest: that we don't have to "stoop down to the level of our opponents." Time and again, history has shown that you have to fight fire with fire. Terrorists are certainly adept at torturing us, even en masse by cutting off heads on videotape. It is quite unfortunate that we have to engage in any sort of torturous counter-tactics. But engage in them we must, I fear, if we intend to win the war on terror and minimize damage to ourselves.
For these sorts of reasons, I've started a little movement called ERBA: Ethical Risk Benefit Analysis, which concerns itself with among other things the use of RBA on questions of the utility of torture performed by armed forces of a democracy. Here is a cite from Robososoldiers dealing with a FOIA request I'm working on, it's directed at CIFA, a DoD unit that is tasked with risk assessments of Guantanamo prisoners: http://www.girlrobot.com/blog/2005-12.htm#2005-12-07+09:24:12+1 .
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