Asymmetrical Information

A friend just got summoned for jury duty and asked me to give him my nullification spiel. During the course of it I found myself expanding my categories. I started out in favor of nullification for your standard "victimless crimes" - prostitution, drug possession, nonviolent drug distribution, cooking with trans fats etc.

But now I find myself thinking, to the extent that sentencing someone to prison is sentencing them to rape - likely repeated rape - I really have to ask myself, "Which crimes, nonviolent or VIOLENT, merit rape as a punishment?" Aside from rape itself and murder, I have a hard time coming up with any.

Since we are on the subject of torture, does this qualify? http://www.marginalrevolution.com/marginalrevolution/2007/04/my_favorite_thi_1.html
I, for one, would rather be flayed alive.

Jane,
I'm aware of the 1-in-4 stats on sexual assault against women, but even assuming that's true, given the overrepresentation of males among your commenters, I would venture to say that more of them have had an experience in which they had difficulty breathing -- near-drowning, asthma, allergic reaction -- than in which they were subject to sexal assault. So I suspect the heuristic works in the opposite direction: the idea of forced sex, because unknown, is far more horrifying than the idea of the more-known experience of temporary suffocation. And while rape survivors suffer PTSD, so do many survivors of combat, natural disaster, etc.

Jim,
Does that mean that you would want to sentence people differently based on their sex and body type? After all, a woman may be less likely to be raped in prison (particularly by fellow inmates instead of male authorities) than a man; a large Manly Man may be less likely to be a victim than a small, effeminately-presenting man.

PG: Maybe, yes. That kind of discrimination sounds on the surface like a travesty of justice, but it's the condition of the prisons that's the travesty of justice.

Side query: I haven't looked at cross-national studies of prison systems. Is the prevalence of rape in prisons an AMERICAN thing, or a worldwide issue? Also I wonder about history. Jack Henry Abbott's book (an awful, evil thing) first brought prison rape to national attention, I think. But how far back in US history does the practice go? Lots of things used to be simply Not Talked About. Is prison rape an ancient or modern syndrome, an American one or international?

a large Manly Man may be less likely to be a victim than a small, effeminately-presenting man.

And more likely to become a victimizer, which raises its own nasty issues. Which only reinforces the larger point: it becomes impossible to do Justice in a context of prison-rape prevalence.

Most of what I know about prison rape comes from editing a law journal article about it. Some footnotes:

42 See, e.g., DONALD CLEMMER, THE PRISON COMMUNITY (1940); JOSEPH FISHMAN, SEX IN PRISON 81-82 (1934) (detailing terms used by inmates to describe each other’s sexual roles); GRESHAM M. SYKES, THE SOCIETY OF CAPTIVES: A STUDY OF A MAXIMUM SECURITY PRISON (1958).

43 For an overview of early and mid-twentieth century research depicting prison sex as an issue of (true or situational) homosexuality, see Helen M. Eigenberg, Correctional Officers and their Perceptions of Homosexuality, Rape, and Prostitution in Male Prisons, 80 PRISON J. 415, 418-21 (2000).

44 Prisoner sex was viewed as a consequence of “sex starvation.” R. Lindner, Sexual Behavior in Penal Institutions, in SEX HABITS OF AMERICAN MEN 207 (E. Deutsch ed., 1948). Sexual deprivation rendered the prison “a giant faggot factory.” D. Lee, Seduction of the Guilty: Homosexuality in American Prisons, FACT MAG., Nov. 1965, at 57.

You can see the article at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=883737.

You can see the article at

Thanks! Good tip.

"a large Manly Man may be less likely to be a victim than a small, effeminately-presenting man."

makes no differnece..all about power..and most often it's a gang rape so being 'a large Manly Man' would make no difference.

I have a feeling that prison rape is practiced around the world. Isn't there a line in the movie Airplane! about Turkish prisons that indicates as much? I realize that referencing a slapstick comedy from nearly 30 years ago isn't inarguable proof, but it indicates longstanding and widespread acceptance of prison rape.

What I don't understand is the institutional acceptance of prison rape. Imagine some new meat on the cell block complaining to a CO of being threated with rape by several inmates and asking for protection. I can't believe that such a request would be taken seriously, because if it was, then why is this the open secret of America's prisons?

That unwillingness to act on the part of prison officials makes me think that they use the threat of rape as a disciplinary tool (do what we say, or we look the other way when you head into the showers with Bubba).

What I don't understand is the institutional acceptance of prison rape.

You needn't think the COs are anything but fully committed to reducing rape to recognize that they have an impossible task in some places. They can't give everyone his own cell, they can't prevent prisoners from being together sometimes in large groups, and they can't see every dark corner of every space. It may be that there is institutional toleration, but it may also be that there is simply institutional inablity to do anything.

Plus they need to rely on snitching for after-the-fact punishment, which might be discouraged by the fact that the snitch needs to live in the prison afterward.

Not that you couldn't build and staff a prison where rape was all but impossible, but the money required is apparently more than legislators are willing to spend, and the warden and COs can only work with what they have.

Christina...

Midnight Express

Not to get on the subject :) but there was a news reporter that got waterboarded live on TV (think it was FOX so for those of you who would now like to disbelieve this have at it). Can't remember who it was but he said it was awful and then it ended and everything was all right. He underwent it 3 times (upping the ante each time).

Would I want it, no. Would I rather undergo it after witnessing it than maiming, rape, or incarceration for a long time even without rape, hell yes.

Anyway I overcame my inherent laziness and googled it up.

http://www.youtube.com/watch?v=c2Xd0Q2Auz4

My thoughts:

I think the anti-torture crowd pulled a fast one on everyone when they framed the debate in terms of what each individual would personally allow or do.

I don't think that's the point...
Most people have never been in the military. Most people have never had to deal with a terrorist actively attempting to continue warfare from inside the prison cell. Most people have never been in a truly life-or-death situation.

Some things, you need to leave to the experts to decide. Delegation is the key to success, because no one can know everything.

At the moment the anti-torture advocates succeeded in opening debate among laymen, the debate became ridiculous.

The U.S. is not a direct democracy, and voters don't have input into every decision. We vote for the people we want on the basis of their stated goals. If we want those goals to be achieved, we accept the methods they use to achieve those goals. If we don't, then we can vote the decisionmakers out.

I want terrorists to be stopped from killing people, not just Americans. If someone is wittingly continuing the battle after surrender and/or capture, then we have the right to kill them immediately. Anything short of immediate execution that doesn't involve maiming or extreme pain is a mercy.

That's the bulk of my feeling...the rest can be found here.

Yes Bladedoc,

I have a strong feeling thats exactly how it happens in practice. Thats just good journalism right there!

Jim, although I agree with you that prisons are morally problematic, I don't think they are all bad, nor are all inmates a part of the prison sex system even in those which are. Of course, actual numbers here would be nice, and I don't think there are any good ones. One good thing that did happen coming out of recent years is a Congressional mandate to at least study the problem to put some numbers on it.

My gut feeling on reading some of the prison rape testimony out there is that most of the prison population is neither directly a victim, nor directly a victimizer in prison rape. So (totally pulled out of the air), something like 10%/60%/30% for victims/uninvolved/rapists in a bad prison.

Also, it's pretty clear that prisons vary in their rape-factory badness proportionate to their security level and average sentence. County jails are mostly not a problem. A guy spending a year in minimum security will probably be OK. It's the guys (especially small, weak guys) going to max security that are likely to get raped.

If a guy "serving" a life sentence w/o parole instigates a rape, even a brutally violent one... what do you do? Right now, the answer is basically: nothing at all.

You're right in that anyone sent to such a place will come out scarred by it. Listen to rap music sometime. The relentless misogyny is not just that; it's also homophobia, both of which are reflections of the idea of manliness (not being fucked) that prevails in prison. The boasting, the aggression; these are the attributes of a man who manages to avoid being fucked, or ideally, is the fucker. Ugly, ugly stuff. Yet right out in plain sight, for those w/ ears to hear.

That said, there are certainly some crimes which warrant removal from the community even at the price of potential rape. Murder, rape, etc. And it does depend a lot on the prison.

Once the numbers get out, if they are reliable enough, it would be interesting to see a suit by a prisoner to avoid being sent to a prison for fear of rape. If the judiciary can be convinced to see this as a "cruel and unusual" punishment, hence a 5th amendment violation, that might be what it takes to finally get some real reform.

it would be interesting to see a suit by a prisoner to avoid being sent to a prison for fear of rape

I don't know of a lawsuit, but defense attorneys have made the argument about a defendant's being too small/ weak/ pretty to go to prison, particularly the large prisons where prisoner-on-prisoner abuse is more likely to occur.

As for what it would take to prevent prisoners from hurting each other, I recommend reading the article whose URL I posted above. It points out that it may require more intrusion: more cameras, bright lights, open spaces or plexiglass walls. *Everything* has to be in the guards' view, at *all* times. Much like force-feeding prisoners or detainees, such measures may be necessary for their own good, but it adds another layer of paternalism.

Here's a way to eliminate 90% of prison rape. Reinstitute the practice of flogging, and skip most incarceration sentences. Grand Theft? 10 Lashes. Aggravated assault? 25 Lashes. Assault with a deadly weapon? 50 lashes.

No more, or very little, rape - and the few people left in prison who are likely to get raped have most likely committed a crime so horrendous that they deserve it.

As for the innocent who gets sent to prison, well he was going to get raped ANYWAY.

Here's a way to eliminate 90% of prison rape. Reinstitute the practice of flogging, and skip most incarceration sentences.

Your idea has merit (incarceration is expensive and the more immediate prospect of a public flogging may have a greater deterrent effect) but once activist judges decided that they could ban whatever form of punishment they personally disagreed with under a loose “evolving standards of decency,” we were pretty much left with fines, incarceration, and execution. Which means that men who might otherwise be flogged and then get on with trying to live productive lives can thank the bleeding hearts of yesteryear as they spend the best years of their lives behind bars in fear of being assaulted.

Kind of OT (but related) but did anyone else watch tonight’s season finale of “Prison Break” and feel chills down their spine at the image of Bellick in the finale scene?

Agree with the previous comments suggesting that certain types of physical punishments should be separated from the definition of torture.

For many people, five minutes of a Singaporean-style caning (and the subsequent week in which it is impossible to sit comfortably on any chair, including the latrine can) would go into behavior modification much more quickly and efficiently than five years in a modern prison.

Humans and most higher-level animals learn from temporary painful experiences, and they learn very quickly. Unfortunately, depending on which type of prison you're in, a modern criminal justice detention is either a little too comfortable or horrifyingly brutal.

I'd choose waterboarding any day of the week.

One commenter asks if it an American phenomenon or if prison rape is also widespread in Europe:

I don't think there can be any doubt that it is far more widespread in the US than it is here (Denmark). If some fraudulent accountant got gang-bang raped in prison, I'd expect it to reach the national news the next day. It's only a year or so ago that some well-known convicted fraud was beaten up in jail - _this_ did make it to the national news. Denmark is a small country, but this does not change anything; these things don't happen here on any scale comparable with that of the US. It's not something that is discussed here either, which should not surprice if the problem is either very small or non-existent: For instance a google search on the Danish translation of prison rape (fængselsvoldtægt) gives 1 hit - and this hit is criticizing the prison rapes in the US. Similar searches yield similar results: Few hits and most hits criticize the American justice system for being medieval and what not.

To even think that rapes are so systematic and widespread in prisons that a judge would take into account the risk of the accused being raped in prison when he decides on his sentence, I find this insane and beyond my comprehension. That this takes place in a Western country - I simply don't know what to say? I mean, if you can't even stop people from raping each other in a prison, where they are locked up most of the time and surrounded with armed guards, where the hell can you stop them? If rapes are widespread in prisons, you are not doing enough to prevent them from happening; they are allowed to happen. If this is how many Americans (obviously a minority of the readers of this blog) think about justice, I find it strange that Abu Graib came as that much of a shock to them.

I just don't care about terrorists being waterboarded. I have no sympathy for them. When they decided to attack the United States they lost any right to expect mercy from us.

As Machiavelli argued, it is better to be feared than loved. By dealing harshly with our current enemies, we make future enemies fearful of taking us on.

That said, there are two serious problems with torture. First, by damaging America's image abroad it makes allying with us more difficult. Tony Blair and John Howard are paying a price domestically for allying with us. Second, the government is far from infallible, meaning that, at some point, innocent men will be tortured. So we must draw a line somewhere.

It is not a good idea to be "flaying people alive" for instance. But waterboarding doesn't seem so bad to me. It terrifies the terrorist, yes, but without doing them any real physical harm.

I wish Jane and others would admit that the defintion of torture is somewhat arbitrary. There are some who wouldn't be satisfied unless the terrorists were detained at a Holiday Inn or Club Med, with room service an personal massages.

In the latest print edition of The New Individualist, editor Bob Bidinotto, fan of the TV series 24, defends its potrayal of torture as a necessary act.

Sheesh.

I basically agree with these posts, but I wonder because it's my understanding that most prisoners would rather not be regularly in solitary (as in Gitmo) even though entering the general population of the prison creates the huge risk of rape. So maybe as bad as prison rape is, isolation + waterboarding is actually worse.

Anyway, as everyone involved has acknowledged, except as this relates to trying to stop prison rape, this whole line of thought essentially has no relevance.

I guess I'm an exception, James. (not sarcasm) I'm almost certain that if I were ever locked up, I would demand solitary. For me, not having a physical person to talk to isn't that big a deal. It's great to have people around, but for me, not having it isn't specifically painful. Heck, most of my time outside of work isn't around other people.

It certainly wouldn't be as bad as the risk of assault. Even if I weren't assaulted, why would I want to be around most of the gutter trash there?

I think you can solve much of the problem by eliminating incarceration as a punishment for non-violent crimes. Fines would be good a good first step, but decriminalizing any number of victimless crimes is really the only long-term solution. That would decrease the prison population enough that the guards could actually keep an eye on things...provided they cared (which I find unlikely).

Add me to the camp of those who believe some type of corporal punishment would do much to alleviate this country's problems in the criminal justice system. I have known too many redneck fools who think of county jail as an expense-paid vacation, and seen too many accounts of the brutality of prison life and the high rates of recidivism to think that incarceration is a good punishment for most crimes. I'd rather see convicted criminals, bruised and battered, have to return to normal life. At least that way the punishment is immediate and cheap. And side-effects of incarceration: prison gangs, rape, loss of family and (legitimate) livlihood are eliminated.

If this is how many Americans (obviously a minority of the readers of this blog) think about justice, I find it strange that Abu Graib came as that much of a shock to them.

You've got to keep in mind that the average American citizen is much more likely to either be in the military, or know somone currently or formerly in military service (I know a dozen fitting that description, including my cousin as of a month ago), than to be or know someone serving a sentence in federal prison.

The former has an identification factor. People look at the pictures of Lynndie England et al and see their sister-in-law, or their best friend's daughter, etc. and wonder how on earth it would have come to that kind of behavior. But federal prison? About the best image most people can conjure up is to cobble together random movie scenes and then guess that maybe it kind of looks like that.

I'm sure there's an important difference between having the experience of suffocation occur due to chance, and having it done to you by hostile jailors who control your life. I would think that being controlled like that is one of the reasons rape is so bad.

For those interested in correcting popular misconceptions about sex in prison -- at least, that which is getting reported under the Prison Rape Elimination Act -- "Roughly half of all sexual impropriety reported in U.S. prisons and jails last year was perpetrated by correctional staff, not inmates. Female staff were the offenders in two-thirds of the prison cases, and two-thirds of the victims of prison staff were male inmates, according to the U.S. Bureau of Justice Statistics."

anony-mouse:

You've got to keep in mind that the average American citizen is much more likely to either be in the military, or know somone currently or formerly in military service (I know a dozen fitting that description, including my cousin as of a month ago), than to be or know someone serving a sentence in federal prison.

I think you mean "the average American citizen when you're averaging the white, high school graduate, above the poverty line population." The following are 1998 figures, but I have no reason to think the trend has improved:

- Nine percent of *all* black adults are under some form of correctional supervision (in jail or prison, on probation or parole), compared to two percent of white adults.

- Almost five percent of black males nationwide are in prison; less than half of one percent of white males are.

"If this is how many Americans (obviously a minority of the readers of this blog) think about justice, I find it strange that Abu Graib came as that much of a shock to them"

Bear in mind your perception of "shock" comes from news accounts, which are not written by folks representative of the general population. Most Americans were not shocked by the Abu Ghraib stuff. Among other things, the credibility of those criticizing the episodes at Abu Ghraib and Gitmo was destroyed when, as many here have discussed, it became apparent that their definition of torture was ridiculously broad, and included things (subjection to hot/cold environment, being forced to wear womens' underwear) that clearly aren't.

Harsh physical punishments might work, but that's not how our enlightened society which doesn't like to hurt animals works. We'd rather lock them up and forget about them than do something as unsightly as chop their hand off for being a thief (I think that punishment is a little too...heavy handed)

All these arguments remind me of a bunch of teenagers in philosphy 101. "Is it permissible to kill 1 person if you'll save the life of another by doing so?" Blah blah blah.

Just a bunch of hypothetical nonsense. The fact is, the real world requires us to make decisions, decisions we'd never want to make, but since we are in the midst of a war we have to make them. So yes, if we need to tortue someone to get important information out of them we will do it on the spot. I don't know how you can codify that and justify it legally and morally, but that's the problem with rules, laws and wars. Wars happen when all the rules break down. It would be great if we could be nice and act as morally as we'd like to and at the end of the day, if we die, well then we died doing "the right thing". But when not just our lives are on the line, but future generations and entire societies you sometimes have to fight fire with fire. My life is more important than your rules.

"I just don't care about terrorists being waterboarded. I have no sympathy for them. When they decided to attack the United States they lost any right to expect mercy from us."

Whether or not one agrees with this position, there's an additional very important issue - the assumption that waterboarding, etc., is being applied with complete accuracy. That is, an actual terrorist is being tortured, rather than some shlub with bad politics and/or worse luck, or perhaps an enemy who decided to get even and make money by turning them in, or etc.

Dan S.

You are right. Sometimes we get the wrong people. I imagine they aren't raiding houses left and right and waterboarding people. I doubt the CIA is barging into people's houses and demanding they tell them everything they know without having some background knowledge and survaillence on the person. I'd assume they are using this tactic on very known targets. Even more, this wonderful "sunshine" policy that we have where we discuss our interrogation techniques is a wonderful way for terrorists to train themselves. We know its already in their manuals to lie and pretend they are innocent bystanders and to go even further and claim they are tortured to whoever will listen. I can only hope we have a few more techniques that aren't being discussed.

But back to your original point. We may get the wrong guy. That's true, and unfortunately stuff like that happens. I'm not sure what to say other than that. Do we not bomb a target because someone may be inside who is innocent? Does a soldier not shoot because his bullet may strike the wrong target. We do what we always do. Excercise as much restraint as necessary, but in the end we make the decision that is best for OUR own personal safety.

I'm no more worried about an innocent person being waterboarded than I am about an innocent person being involved in a firefight. In fact I think being caught up in the middle of a firefight with a handful of Marines would be a lot worse than somehow getting swooped up out of the blue (which I doubt is happening) and waterboarded.

At the moment the anti-torture advocates succeeded in opening debate among laymen, the debate became ridiculous.

Remember grinning Lyndie England, pointing at the man-pyramid? That's your expert, right there. The people who design and implement torture policies (the word policy gives them too much credit) are less qualified to judge anything than lay people. Which is why so many military and intelligence officials have come out against coercive interrogation as both immoral and ineffective. T suspect there's more support for torture among lay people than qualified interrogators.

Jane,

I don't think you are making a good comparison. What you have to imagine is that you are captured by strange men, taken to a cell with no outside contact and no way to reach anyone who may help you, and then repeatedly (not just one time) waterboarded while asked for information you don't have. As time goes by and the interrogators grow tired of you now giving them the information they are convinced you possess the waterboardings are increased and/or supplemented by other interrogation techniques, like sleep deprivation.

After a few weeks of this treatment, where you don’t know what will happen to you and where others have complete control over you as they apply to you what they see fit, how do you think you would feel?

The problem with much of the debate here is that is assumes we can identify who is a terrorist and who is an innocent bystander. Of course, if we had such terrorist-identifying machines we probably wouldn’t need torture to begin with. But we don’t have them so we must assume that anything we allow the government to do will be done, sooner or later, to an innocent person.

I think it was David Walser who in another thread said his wife saw a video of a journalist being waterboarded and thought it wasn’t a big deal. So how about this. Suppose some strange men take her and do to her what I described in the first paragraph. Then return her to her home. Would David, or any man for that matter, simply say, “Well honey these things happen and it wasn’t really torture in any case”?

Well GT, I wouldn't want the first paragraph done even if you replaced "waterboarding" with "noogies", or "tickling"... Does that mean noogies = torture?

Does that mean tickling is too horrible to contemplate using for information gathering purposes?

Is there anything that would be acceptable to do to try to get information out of a detainee? If not, I'm not sure why we bother to capture people.

If we aren't allowed to get any answers using any more harsh methods than the soft chair and the fluffy pillow; then we probably don't need to bother locking them up and paying to feed them for several years.

That would make the ROA a lot easier. Less situational conflicts for our troops all around... we'll just stop taking prisoners.

That would be acceptable, right?

Ok, not sure why it logged my message as from "GT", the previous was me, and obviously not GT.

The fact is, the real world requires us to make decisions, decisions we'd never want to make, but since we are in the midst of a war we have to make them. So yes, if we need to tortue someone to get important information out of them we will do it on the spot.

We are in an unnecessary and unwinnable war which our president got us into based on lies. That's your justification for torture?

We are in an unnecessary and unwinnable war which our president got us into based on lies. That's your justification for torture?

I didn't know you'd joined the "9/11 was an inside job" lunatics, purple.

It may be that there is institutional toleration, but it may also be that there is simply institutional inablity to do anything.

The lack of prosecutions suggests otherwise.

GT,

Thanks for dropping by. I don't think anyone, including my wife, would want to be waterboarded. I haven't been to Disneyland in years, but I don't recall waterboarding as being one of the amusements. Nor do I think anyone would want to be taken prisoner and grilled under bright lights for hours on end.

What's your point? That anything we wouldn't want done to ourselves should be considered inhumane and therefore prohibited? I wouldn't want to be arrested late on a Saturday night for unpaid parking tickets and be stuck in the local drunk tank until I could pay the fines Monday morning. Does that make drunk tanks, per se, a form of torture?

My original point was that many people have no idea what waterboarding entails and might not consider it to be torture if they had better information. My wife was one who fell into that category. Before she saw the video, she was unalterably opposed to waterboarding. (We had had that debate.) Having a better understanding of waterboarding, she no longer considers it torture or unmentionably horrible. Instead, she thinks half of what goes on Fear Factor -- none of which is torture -- is worse than waterboarding. However, GT, if your view is that anything we would not like done to us is torture, that's an entirely different debate.

I didn't know you'd joined the "9/11 was an inside job" lunatics, purple.

Where did I say I believed that?

David,

I didn't write anything about what should or should not be allowed. My only point is that people like Jane or yourself or your wife (as you've described it) that think waterboarding may not be torture or may not be so bad are unlikely (IMHO) to think that way if they were to go through what waterboarding means in real life.

I too would rather not spend a weekend in a drunk tank or have my wife spend one. But if it happened I would be upset but I would no think that it was power that should be denied the government nor would I think it torture. Waterboarding is something different.

So does anyone else thing Jane is trying to get to google's number 1 ranked spot for prison rape or gang rape? I'm sure you could sell the domain for a pretty penny in that case....

Purple,

You claimed the justification for torture was an unwinnable war based on lies.

That would apparently be the war on terror.

It can't logically be Iraq alone, because the debate about waterboarding/torture/Gitmo predates Iraq, would be happening if Iraq had never happened, and will go on after it is over.

So you must mean that any attempt to combat terrorists is doomed and based on lies.

"That anything we wouldn't want done to ourselves should be considered inhumane and therefore prohibited?"

Congratulations - you've reinvented the Golden Rule!

Rob Lyman, I don't understand what you mean when you say

the debate about waterboarding/torture/Gitmo predates Iraq

Where did I say I believed that?

Well, shoot, if you're gullible enough to believe all these other ostrich homilies you throw at us, that one's got to be in your repertoir somewhere.

" I imagine they aren't raiding houses left and right and waterboarding people. I doubt the CIA is barging into people's houses and demanding they tell them everything they know without having some background knowledge and survaillence on the person."

No. But this is a variation on 'well, if if you haven't done anything wrong, then why worry about [massive violations of the liberty and rights of others]. Even if torture was currently being applied with complete accuracy (and it is well established that we were involved - via outsourcing - in the torture of at least one apparently innocent person, not to mention whatever may have happened to some of the folks turned in by the Northern Alliance, random Iraqis, etc., for grudges and rewards), method creep would still be a giant concern. You start with waterboarding the 'right' people - which is no doubt preferable to some other techniques - and it is in the nature of things to end up zapping some poor bastard's genitalia for far less defensible reasons.

"We are in an unnecessary and unwinnable war which our president got us into based on lies."

This is not reasoned analysis. These are the words of a fanatic... I have yet to hear anyone explain where the lies were. The Bush administration argued for war in Iraq based in part upon Saddam's supposed weapons stock piles. When it turned out the he had nothing like the stockpiles we believed, people started calling Bush, Cheney, etc... liars. But where is the proof?

The evidence indicates a massive intelligence failure. Bush, Cheney, Powell and just about everyone else in a position of authority in either party believed that Saddam had these weapons. They were mistaken, they were not lying.

For any reasonable person, the following quotes are ample evidence that there was a widespread misjudgment in Washington D. C. about Saddam's weapons, but no lies:

"[W]e urge you, after consulting with Congress, and consistent with the U.S. Constitution and laws, to take necessary actions (including, if appropriate, air and missile strikes on suspect Iraqi sites) to respond effectively to the threat posed by Iraq's refusal to end its weapons of mass destruction programs." -- From a letter signed by Joe Lieberman, Dianne Feinstein, Barbara A. Milulski, Tom Daschle, & John Kerry among others on October 9, 1998

"I will be voting to give the president of the United States the authority to use force - if necessary - to disarm Saddam Hussein because I believe that a deadly arsenal of weapons of mass destruction in his hands is a real and grave threat to our security." -- John F. Kerry, Oct 2002

"Iraq does pose a serious threat to the stability of the Persian Gulf and we should organize an international coalition to eliminate his access to weapons of mass destruction. Iraq's search for weapons of mass destruction has proven impossible to completely deter and we should assume that it will continue for as long as Saddam is in power." -- Al Gore, 2002

"...though there is apparently no evidence of his involvement in the terrible events of September 11, 2001. It is clear, however, that if left unchecked, Saddam Hussein will continue to increase his capacity to wage biological and chemical warfare, and will keep trying to develop nuclear weapons. Should he succeed in that endeavor, he could alter the political and security landscape of the Middle East, which as we know all too well affects American security." -- Hillary Clinton, October 10, 2002

Formally permitting torture is a bad idea because the practice inevitably attracts people who either at the onset, or eventually, cannot manage the practice without devolving into sadism; torture for torture's sake. That said, the anti-torture contingent lost a great deal of credibility when they went so far as to protest, on supposedly humanitarian grounds, the wrapping of prisoners in Israeli flags, being touched by scantily clad women, or being smeared by fake menstrural blood, among other nonsense.

Also, in a world in which the incineration of entire cities, in large part populated by civilians who have had no input into political developments, can be viewed as a lawful act of war, the fatuity of applying legal standards to that most profane of human activities, war, becomes clear, in all the horrible ways human warfare is expressed.

No, I am no pacifist. In fact, I think pacifism may be the most immoral stance of all. I'll be damned, however, if I can provide a workable framework for legally regulating warfare in a useful way.

Yes, so let's not bother!

Go ahead and bother, tequila, but don't be so silly as to think that you are going to actually accomplish anything, except in a very self-serving (strangely, the winners are always more law-abiding than the losers), or very marginally useful way.

What I dislike most about so many in the anti-torture contingent (with whom I have many areas of agreement) is their ahistoricism, whether it be an outgrowth of their fundamental ignorance or their dishonesty. Andrew Sullivan is a good example of someone who consistently writes untruths, deliberately or not, in an effort to make his argument. I think this is ultimately counterproductive.

"Laws of war" is an oxymoron, but there are three possible reasons for adhering to laws of war:

1) There are depths to which you cannot descend without great harm to yourself.

2) Reciprocity. E.g., Hitler's Luftwaffe was the most Nazified of the German military branches (except for the SS military units), but it kept pretty good care of captured Allied airmen (if German civilians didn't murder them before they ever reached a military unit), because the English had captured so many German pilots and Goering wanted them to be treated well.

3) Someday the war will end, and win or lose, you'll have to find a way to get along with these people.

Well, unless the enemy truly are people that it's never going to be possible to coexist with. There were many people who believed that about Germans and Japanese once, so there's certainly a great danger of making that judgment erroneously. OTOH, many Muslims have been working very hard to convey the message that it is impossible to get along with them unless you convert, oppress your women, and abide by medieval laws, and almost none have tried to counteract that message.

I don't think it's intrinsically the Muslim faith, because I've been to Malaysia, a majority-Muslim country where it's easy to find a Chinese restaurant serving pork a dozen different ways. But the combination of Arab and similar cultures with Muslim fundamentalism is definitely toxic. How do you de-program an entire country?

Or maybe we did de-program two entire countries once - German and Japan. If you believe that, maybe we just haven't bombed the Muslims hard enough yet. Or maybe the mistake was that we didn't reduce Iraqi cities to rubble before their own extremists did it?

To go off on a bit of a tangent, consider the recent treatment of the captured Brits. They certainly weren't subjected to old-school torture - but did undergo "days of psychological games intended to extract “confessions”," including a mock-execution - being cuffed, blindfolded, and lined up against a wall, as they could hear rifles being cocked - days of isolation, telling Ms. Turney that the other (male) captors had already been freed . . .

What do we think of this behavior?

What do we think of this behavior?

We think the sailors and marines should be court martialed for cowardice and at least cashiered, and preferably sent to prison for several years.

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