I take it that there is some point at which it is widely understood that particular back-and-forth exchanges between bloggers are supposed to wind themselves down, but I don’t know where that point is and so I’m going to press onward and respond to what James Poulos (hereafter “James”) says here. First up:

… probably unhelpful here is my unfashionable-in-both directions international-law justification for invading Iraq (yes, even after a failed Security Council resolution a preemptive decision by the French to veto any coercive enforcement of 1441, violating thereby one of law’s basic principles).

True enough: there are, and were, plausible justifications to be had for invading Iraq. (Though note that we, i.e. the United States, are not ourselves the United Nations, and so it’s far from clear to me that the job of doing the unfinished dirty work of the latter is really ours.) But there is a substantial gap between (1) one’s being justified in doing something, and (2) that thing’s being the thing one ought to do. The law might allow, or even command, the doing of any number of different things, but it is inescapably up to the dictates of conscience and prudence to determine where to go from there. Moreover, there are crucial distinctions to be made between, on the one hand, the kind of small-scale invasion that seems to be the appropriate response to the violation of international laws concerning weapons inspections, and on the other, an attempt at “massive, comprehensive conquest” which can succeed only through ruthlessness on the battlefield or waterboarding off of it. (This latter distinction is one that I failed to make clearly enough in my earlier posts.)

But these are really only side issues, since I think that James is obviously right to say that the questions raised by what has happened in Iraq are not at all limited to this particular conflict. Hence:

I don’t disagree that incorporating some violent techniques into some interrogations will fuel the passions of the Preemption Brigades. But I do think the working alternative to doing this in a careful and sober legal way is to cede all authority to do so in a reckless and illegal way to the President, whomever he or she may be.

A second alternative is a zero-tolerance rule to violent interrogation, but given the seamless connection between battlefield capture and off-battlefield detention, we’d have to extend that zero-tolerance regime to the ‘moment of conception,’ so to speak — and enforce it. To do that is to ask something unreasonable of our warriors on the battlefield, precisely because they are trained to act in not very reasonable ways. Not very savory, but neither is war, and though we may roll up the Iraq operation sooner or later, we won’t roll up this legal problem anytime soon. Unless we face it squarely and resolve it within the law itself.

In the case of the Yoo memos, though, the specific questions that are being raised concern the use of torture as a tool in interrogation, and not the necessarily unsavory conduct of warriors on and off the battlefield. They are, in other words, not about minimizing the nastiness of “off-battlefield detention“, but rather about how, when we turn to asking questions of our detainees, we may try to force them to give us helpful answers. And here, I think, the distinction between preemption and punishment is one that can help us quite a lot, and in particular can help us to see why the sort of policy that governs the interrogation of detainees need not be extended all the way to the point of their detention: there is a certain class of issues that concern how enemy combatants and prisoners of war, as well as terrorist ringleaders and other criminal-types, are to be treated insofar as they are regarded as wrong-doers, and then there are the quite distinct questions of the sorts of methods that ought to be employed in “extracting information” from such persons – that’s to say, the things that can be done insofar as we’re trying to prevent future evils. This is, of course, very much the same distinction as that between preemptive and retaliatory military action, and it’s for this reason that I’ve been arguing that the respective tendencies to go in for “enhanced interrogation” and preemptive war both have their source in the same moral failing. Once this distinction has been made sufficiently clear, though, the relevant legal problems seem to me to become considerably more tractable.

That’s not to say that they’ll ever be easy to deal with, nor that there aren’t other important questions to be asked about the ethics of in bello conduct proper. And it would be nice, to say the very least, if our society were equipped with the kind of robust moral tradition that permitted us to deliberate about controversial actions on a case-by-case basis and simply see whether they were right or wrong, instead of having to go through the tedious and unending work of codifying necessary and sufficient conditions for every sort of wrongdoing. We’re not, though, and that is why treaties like the Geneva Conventions ought to be taken with such seriousness.

     Filed under: morality, torture, war