What surprises me is the uncoordinated, amateurish way in which people have been abused. One might expect professional interrogators to have tight control over the abuse - what, how, how long, etc. But we see a bunch of junior military police taking home photos with naked Iraqi prisoners, in rather odd sexual situations involving women’s underwear.

Rather than blame an official policy of interrogation techniques (which may be true, more or less), I would blame a cultural viewpoint that has taken deep root in America, but not in the EU (because no one flew a plane into a skyscraper there yet).

Americans, in general, will not distinguish between one Arab and another, one Muslim or another, after 9/11. Right or wrong, good or bad, Iraqis, Afghans, and anyone else who wants to step up to the plate is being cast as the “enemy”. And the enemy is a nameless, faceless, godless, inhuman beast with no rights.

So imagine a group of American soldiers arresting Iraqis at night. They find a gun, or some ammunition. Maybe a large amount of cash. Certainly there might be a reasonable explanation for any of it - an explanation that has nothing to do with terrorism. But that is not going to be taken into consideration because the Iraqi is the enemy - and is by definition less than human. So any preconceived notions we have about how they will be treated, regardless of written orders, go right out the window.

I’ve warned people here that if there’s another 9/11 style attack (or something of that magnitude) here in the US, the Muslims who live in the US will be in concentration camps by the end of the week. And if an attack like that happens in Europe, well, the world will get just as ugly there, too.

Shortly after the Supreme Court’s decision, MK Reuven Rivlin (Likud) introduced a private bill that would have essentially have overturned it. The bill was later withdrawn and AFAIK nothing similar has reached the Knesset floor since then.

This decision opened with a description of the difficult reality in which Israel finds herself. We conclude this judgment by revisiting that harsh reality. We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy?it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.

Looking specifically at the ex-ante use of the defence of necessitythe court stated (para. 36):

The ?necessity defense? has the effect of allowing one who acts under the circumstances of ?necessity? to escape criminal liability. The ?necessity defense? does not possess any additional normative value. It can not authorize the use of physical means to allow investigators to execute their duties in circumstances of necessity. The very fact that a particular act does not constitute a criminal act?due to the ?necessity defense??does not in itself authorize the act and the concomitant infringement of human rights. The rule of law, both as a formal and as a substantive principle, requires that an infringement of human rights be prescribed by statute.

Though it acknowledges on an ex-post basis (at para. 38):

An investigator who employs these methods exceeds his authority. His responsibility shall be fixed according to law. His potential criminal liability shall be examined in the context of the ?necessity defense.? Provided the conditions of the defense are met by the circumstances of the case, the investigator may find refuge under its wings. Just as the existence of the ?necessity defense? does not bestow authority, the lack of authority does not negate the applicability of the necessity defense or of other defenses from criminal liability. The Attorney-General can establish guidelines regarding circumstances in which investigators shall not stand trial, if they claim to have acted from ?necessity.?

I am far from an expert on this issue, Yet I find it revealing that a country which more than any other would on practical grounds be compelled to accept a defence of the use of torture, will nonetheless not condone a blanket necessity defence for it. Yet the court leaves open the possibility that necessity could be invoked subsequent to the act, and prosecuted at the discretion of the State. However I?m sceptical whether the distinction drawn results in any practical differences. Anyway thought this might of interest to some.

I heard the Knesset soon thereafter voted against legislation (or some other legislative tool) that would have legalized torture; I couldnt find any relevant articles, if anyone has an answer to that i’d be interested to hear of it.

“pain cannot be outweighed by pleasure, and certainly not one man’s pain by another’s pleasure”

Says who? Given a properly constructed hypothetical (and it wouldn’t take much), I can easily see myself deriving a great deal of pleasure from many more (likely) years of drawing breath at the expense of somebody who’d like to see me (or my compatriots) dead. I find Popper’s claim to be arbitrary and unpersuasive.

Of course, if the hypo really did happen, you’d have to take into account the possibility - even the probability - that torture-derived information is unreliable.

Both the foreign policy spokesman of the SPD in Germany and Mr. Sch?uble of the CDU - who initially was perceived as having a good chance of becoming Germany?s next Bundespr?sident - have voiced their agreement with you publicly, Scott. You runnin? some think-tank or foundation over there in Belgium? Seems like Europeans are distilling their talking-points from your posts…

But may I say that the “24″ scriptwriters gave an extreme version of the problem a thought and a half in the second season - and they came up with an interesting twist (it had to be extreme because there are few episodes without torturing of either some good or bad guys). Jack Bauer, the protagonist, is seemingly forced to have the terrorist’s family killed on live tv to make the man reveal a nuclear bomb’s location. When the terrorist believes his first son has been shot he speaks to protect the others. The audience is obviously a little confused by this very unheroic display of ungentlemanly brutality - but before long we learn that Mr. Bauer, from the home of the brave, digitally staged the execution.

I belive this “solution” illustrates the fundamental problem quite well: We want someone to do everything for the obvious greater good. But we also know that we cannot trust ourselves to be as righteous and creative as Jack Bauer to stretch a lot, but not too much, and so we also want rules that help us, bind us, and get us through a situation that could lead to a slippery slope, should we ever experience one.

I don’t think there’s a solution to this conflict, well, no theoretical one. I like Quiggin’s argument that if some end justifies torture then the paying a personal price of, say, jailtime should not be too high a price to pay. And everyone tragic enough to have to make that decision then should be willing to drink their cup of hemlock for the greater good.

Maybe that should be so. But it certainly would not happen in any of the worlds I know, for a lot of reasons.

I think you have some odd notions about Europe and Europeans.

That said, my post was about the argument for justification of torture. We could talk about that all day. Even if one accepts the argument, though, it doesn’t appear in any way applicable to what went on at Abu Ghraib. I can only conclude that those offering it do not wish that Abu Ghraib be seen as a problem. You do see it as a problem, so I do not think we are in disagreement about anything really fundamental.

If you really did and your compatriots shared the same attitude and applied it to their near neighbors then you’d be in the midst of or near war

Oh, we were, we were; albeit in a desultory and sporadic way. All in the past these days, I’m happy to say, save for a shower of madmen off in one corner (and that corner we managed to offload on to the neighbours).