Legal Trouble: Torture, Combat, and the President as War

Rod shudders at the freshly-declassified Yoo memo:

Here's a key line from the Yoo memo:

In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy.

Think about how radical that is. The condition of war gives one man the right to make the rules, without oversight or accountability. Wartime gives the president virtually unlimited powers in matters related to running the war, in this view.

So, right. Bad news. The problem here is plain: behavior that's formally or informally permitted on the battlefield, in ultra-intense combat and immediately post-combat situations, makes decreasing sense as a rule the further you get from the battlefield, in both space and time. Now there are two main reasons why that kind of behavior could continue far away from the battlefield:

(1) We are vicious bastards who like tormenting our captives

(2) The captives in question have highly valuable information which cannot be obtained in a different and better way

Obviously (2) is the more compelling reason; i.e. if people didn't think that statement applied, people would think (1) applied very often. Even those following the Yoo line of argument recognize that they have to justify a policy of regular and severe beat-downs.

But there is an uncomfortable subtext here. We are trying to fight an extraordinarily dedicated and fanatical enemy without imposing total war on the areas in which those enemies are found. Of course some of this is a function of the difficulty of the terrain, the nature of the enemy, and the limitations in American will when it comes to deploying total-war levels of troops. But some of it is an extreme queasiness with not only deploying large numbers of troops but with fighting a full-throated, full-throttle war. And so we have to rely on a different set of extraordinary techniques to try to make up for the fact that we're not prosecuting the wars in Afghanistan and Iraq as if the only goals there were military victory. In a way we've got to think soberly about, our dark turn down the torture road is a consequence of our late-modern, small-l liberal nausea over real war.

So if that's true, and if there are other important obstacles to converting the wars in Iraq and Afghanistan into full-on wars of utter conquest (such as limited financial resources, a divided public, the disinterest of the legislative branch, which has to authorize these things), then we have no choice but to force our legal system and legal theory to digest the need for coercive interrogation. This does not mean forcing the US to legalize torture, and I am not recommending that course of action. But I am acknowledging that the legal issue here is this simple one: how far in time and space can we extend the battlefield from the place of capture? Understanding the issue in this way, it seems to me, helps us get a grip on how to adjust properly to balance the nature of our foe and our disgust at torture and the sweeping limitations we've imposed on our own conduct of the wars in Iraq and Afghanistan and 'on terror'.

Solutions won't be easy. But, together, we've gotten ourselves into this mess, and we've got to move forward -- on the battlefield and in the law -- confident in the working presumption that, when it comes to the laws of war, we can get ourselves out of it. Particular wars come and go, but issues like these are forever.

Comments

[John]

For the reasons I articulate here, James, I disagree with your analysis. The move to torture seems to me to be very much of a piece with the underlying rationale for at least the Iraq war, and in any case the Bush administration and its supporters have made it clear that in their view torture is a necessary part of successful military engagement, not something we have to resort to only when conventional military tactics are thwarted. It seems unreasonable to suggest that it's only because the recent wars have been something less than "real" or "total" that we've had to start dunking people.

[Gold Star for Robot Bot]

But some of it is an extreme queasiness with not only deploying large numbers of troops...
You're right - Bush should've listened when Gen. Shinseki said we'd need several hundred thousand soldiers in Iraq.