Violating the laws of war: in extremis and in frivolity

Given the grim circumstances the world faced, I’ve always been queasy about being too gung ho in criticising the bombing raids of the allies in World War Two (though the allies circumstances were less and less grim, victory more and more inevitable when some of the worst raids occured).  There’s also the argument that they shortened the war, though it’s hard to see how they did in Europe when bombing industrial and military targets might have. AC Grayling takes up the challenge arguing that the bombing was deeply wrong in a podcast on the marvellous Philosophy Bites. I guess he’s right.

Meanwhile in military circumstances completely different to the dire struggle for life and liberty that was World War Two, in the most frivolously declared war the West has been engaged in, we got into torture with nary a care.  Hilzoy at the Washington Monthly takes up the story (HT Brad Delong).

The Washington Monthly: A couple of other things that are missing from the torture memos:

First, the memos cite various legal precedents for the definition of torture. They are particularly fond of Mehinovic v. Vuckovic, which involved “a course of conduct that included severe beatings to the genitals, head, and other parts of the body with metal pipes and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim’s forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of ‘Russian Roulette’.” (p. 24; the details of this case are repeated on four separate occasions in this memo alone, like an incantation.) Isn’t it strange, then, that not a single one of the cases in which the United States has prosecuted people for waterboarding turns up in these memos? You’d think they might be apposite. Oddly enough, though, Steven Bradbury didn’t think to include them.

Second: As I noted last night, under the US Code, an important issue in determining whether something counts as producing “severe mental pain or suffering” is whether it produces “prolonged mental harm”. In discussing this question, especially with regard to sleep deprivation and waterboarding, Steven Bradbury spends a lot of time discussing the scientific literature on these topics. And yet, once you think about it, he had a much better source of information available to him. These memos were written in May, 2005. The CIA had been using these “methods of interrogation” for nearly three years. Moreover, the memos fall all over themselves describing the repeated psychiatric evaluations that detainees are given:

“Prior to interrogation, each detainee is evaluated by medical and psychological professionals from the CIA’s Office of Medical Services (“OMS”) to ensure that he is not likely to suffer any severe physical or mental pain or suffering as a result of interrogation.” (p. 4)

Bradbury then quotes the OMS’ guidelines:

1echnique-specific advance approval is required for all “enhanced” measures, and is ‘conditional on on-site medical and psychological personnel confirming from direct detainee examination that the enhanced technique(s) is not expected to produce “physical or mental pain or suffering”‘. As a practical matter, the detainee’s physical condition must be such that these interventions will not have lasting effect, and his psychological state strong enough that no severe psychological harm will result.” (p. 4)


“Medical and psychological personnel are on-scene throughout (and, as detailed below, physically present or otherwise observing during the application of many techniques, including all techniques involving physical contact with detainees), and “2aily physical and psychological evaluations are continued throughout the period of 3 use.” (p. 5; square brackets in the original.)

With all those psychological workups having been conducted on CIA detainees over a period of nearly three years, one might think that the CIA, and specifically its Office of Medical Services, would have lots of information on whether or not the techniques under discussion actually did produce any “prolonged mental harm.” And yet, strange to say, the memos don’t mention any evidence at all about the effects of these techniques on CIA detainees4. It’s pretty strange that the CIA had all that data about the psychiatric effects of its interrogation techniques ready to hand, and yet no one mentions it.

Or then again, maybe not.

4 This is particularly striking in the case of Abu Zubaydah, whose psychiatric condition is described at considerable length in the August 1, 2002 memo. As Emptywheel has noted, the description of Abu Zubaydah in the memos is completely different from the FBI sources quoted by Ron Suskind — they called him “certifiable”. But let’s pretend we don’t know that, and ask: given the 2002 memo’s extensive description of Abu Zubaydah, and given that he was the detainee on whom these techniques had been used the longest, wouldn’t it be natural for Bradbury to explain what dazzling psychological health he was enjoying several years after the CIA had begun using “enhanced techniques” on him?

On reflection, though, maybe using Abu Zubaydah as a poster child for the benignity of the CIA’s methods would not have been such a good idea:

“The sadistic treatment of Abu Zubayda also seems to have affected him psychologically in bizarre ways. Two sources said that he became sexually obsessive, masturbating so much his captors feared he would injure himself. One described him as acting “like a monkey at the zoo.” A physician was called in for consultation — one of many instances in which health professionals have played truly disturbing roles in this program.”


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15 years ago

Reminded of Solzhenitsyn here and his description of how the Gulag began as a tiny speck that grew with such terrifying speed. We seem to have people here who think like many in the Soviet Union in the 1930s even down to the hysterical defensiveness and self-pity when they are ever questioned see the infamous WSJ oped.

15 years ago

I am not quite sure we have anything remotely like the Soviet 1930s. Although it does snow in America, so I guess there’s that. And there’s ANSWER.

As for most ‘frivolously declared war’, I guess that’s true, leaving aside most of the others. Falklands was desperately serious, Vietnam was a last-ditch defence of our mothers’ homes, etc. Getting into the century before that it becomes a bit farcical. But I guess it was more frivolously declared than WWI or II. After all in WWII the US waited to be actually attacked before declaring war…

I agree that WWII was far greater ‘extremis’ than at present. I agree that torture is wrong, and I don’t think the US should have done it.

I don’t think your case is improved by comparing the two – I don’t believe that there was no legal opinion prepared before Dresden, which as it happens, I think was deeply wrong and far worse than this torture. I understand that you may be contemptuous of the legal opinions but I hope you realise that the NYT was exagerating a little when they said that Obama would not prosecute interogators for having used now-illegal techniques. The exageration was the implication that anything except waterboarding is now ‘illegal’, or that Obama has promised not to do this.

Back to WWII I believe that I can understand how the decision to authorise fire-bombing happened (but maybe I just can’t imagine how I would react and so implicitly assume that any reaction is prima facie ‘legitimate’ – I think this is or at least was NG’s position), and I don’t even know if I would actually punish the decision-makers. I believe about the same with regards to the torture of presumed terrorists.

But at least this time around, even if our actions were deeply wrong and should never have happened, our victims were chosen for the appearance of guilt not chosen for the appearance of innocence. I think that is a central moral divide that is too often ignored (see eg Palestine v Israel; Muslim terrorists v us).

I don’t think anything in even the incredible ‘extremis’ of WWII justified broaching that divide, with the exception of Japan where I believe there was a genuine utilitarian calculus.

And whilst I don’t believe that torture was justified here, I don’t think it was ‘as’ grave a wrong as the firebombing of civilian populations, nor as frivolously entered into as you seem to think.

15 years ago

I think the word proportionate has come to be like ‘media bias’. It is a useful word that describes a real phenomomen of some importance, but it is almost impossible to use it sensibly in discussion any more.

In this case however you get away with it since I agree that the torture was a disproportionate response. I disagree with the other sentences in that paragraph and indeed the other clauses in that sentence. I understand that there were a lot of people with combat experience involved. So the stupid phrase chicken-hawks seems even less useful than usual, and it never adds anything imho. Also, I suspect that however hard it might be to understand or relate to, they were trying only to fight a particular war. In this sense they were like the commanders who authorised bombing civilian areas.

So; I think the bombing was numerically and morally far worse, I don’t have significant doubts about the intentions of the torturers, and I somehow find it less despicable.

In the interests of full disclosure, I am, however, ashamed that my opposition was not clearer, earlier. (I was too ready to believe that there was no ‘real’ torture, very naive of me, and too ready to defer to the presumed greater appreciation of the risks faced, also embarrassingly naive of me.) Hopefully I can at least learn from that. I wonder how much of that, though, is hindsight.

15 years ago

Based on my understanding of the modern rules of war, it is hard to dispute that area bombing is dubious at best. However, there seems a few difficulties with that proposition. Who is more important to the war effort, the tank driver or the person working in the factory building it? Ultimately it is hard to say and when you read histories of the war, the major and continuing problem the Germans had with shortages of materials and equipment is hard to escape. Also bombing was not the only way civilians suffered. Thousands of people, including children lived through the Stalingrad battle in the city and many more thousands died. No doubt that happened in many places. So when you think through all the issues in a total war it is difficult to think that these fine distinctions can be made.

The torture is clearly a different issue because this is not a total war. But one still has to ask what risk should the government inflict on the population to avoid causing suffering to the enemy? I’m glad I don’t face those decisions.

15 years ago

Pedro, I appreciate your sentiments, but your reasoning in relation to the bombing is very dangerous stuff! You say, essentially, that because the ‘Germans’ (for which read: the German high command and army) helped cause the suffering of millions that ‘they’ (for which read: the German population) deserved to suffer.

By that logic torture of suspected terrorists was a no-brainer.

Also, note that the wrong complained of lay in the precise fact of shifting from the factories to the people that staffed them, a distinction obscured by your wording.

Finally, WWII was not, really, total war, not in Western Europe. That would be, eg, the Japanese in Asia, or the Germans in Russia.

15 years ago

Patrick, I called it area bombing, which was the term used for the RAF tactic of bombing cities seeing they were not sufficiently accurate to bomb factories. Also bombing factories was hard because of dispersal and so forth. From memory the USAF had more success during daylight bombing, but lost heaps of bombers early on until they had long range fighters. I expect bombing factories is more useful than bombing whole cities, but bombing whole cities is probably a lot better than nothing in terms of contributing to the defeat of germany. Huge resources were devoted to defending against the bombers.

I don’t think the war-shortening benefits of the bombing campaign are really in doubt, so the argument is whether the benefits were worth the cost. I guess different people will have different views on that because we will empathise with different victims. I empathise particularly with some friends of my mum that still had their special tattoos. Maybe without the firestorms they would have been cinders.

I have real doubts about the point of late in the war area bombing on any grounds, but chose to comments on the more difficult issues.

I did not say that Germans deserved to suffer because of the crimes committed by their Nazis and army. Rather, a total war necessarily involves everyone and an injunction to, say, not bomb kids gets a bit difficult with the technological limitations.

I said torture of terrorist subjects is the opposite of a no-brainer. It would only be a no-brainer if you could confidently and definitely rule either for or against torture. do I like the idea of torture? Nope. Would I torture a paedophile to get my kid back? Pass the electrodes.

15 years ago

PS, I thought you had total war when you effectively have the total mobilisation of the state. France, Holland, Norway and Poland were defeated before total war started. England fought a total war at least from Churchill’s assumption of the premiership.

15 years ago

Mom Blogs – Blogs for Moms…

15 years ago

mm, on total war Wikipedia seems to agree with you, although I think it is only accurate to say that WWII descended into total way. For me the defining characteristic was attacking the enemy State without regard to combatant/non-combatants. Wikipedia places more emphasis on the mobilisation, and says this specifically:

World War IIThe Second World War is considered the quintessential total war of modernity. The sheer – indeed, total – level of national mobilization of resources on all sides of the conflict, the immense battlespace being contested, the massive scale of the armies, navies, and air forces raised through conscription, the active targeting of civilians (and civilian property), the general disregard for collateral damage, and the unrestricted aims of the belligerents marked the full and, to the present, final realization of the concept of total war.

Silly me then. But silly you too since frankly, even with the additional clarification, I think that what you actually said, even if you didn’t mean it, is what I wrote. I can largely agree with your comment as clarified though.

~ ~ ~
Final silly quibble. I don’t think Churchill assumed any office let alone a premiership ;)

15 years ago

Patrick, if States are fighting a total war then everyone in the state is essentially fair game as long as there is a genuine military justification. I don’t think it is a question of making people suffer, rather, the suffering is incidental to the military necessity. I think fine hindsight distinctions about what is right and wrong in such wars can be very silly.