Why shouldn’t we waterboard Abdulmutallab?

Originally published in the New York Daily News
By James Kirchick

CockBomber: Just Do It!

CockBomber: Just Do It!

Picture this hypothetical situation: A member of Al Qaeda boards a transatlantic flight bearing 269 passengers and crew headed for a major American city – let’s just say Detroit – with powdered explosives stitched into his undergarments. As the plane makes its final descent, the terrorist (at this point in our narrative, that’s what he is, both legally and morally), fails to detonate his illegal carry-on baggage, but he does draw attention to himself by setting his crotch on fire. Thanks to the heroic actions of some passengers, the man is subdued and, when the plane lands, taken into custody by the FBI.

There, he readily admits to his membership in the League of Extraordinarily Evil Men and taunts his captors with the news that, while he might have failed in murdering some 300 civilians, more such attacks are on the way. Told, however, that he has the right to remain silent and is under no compunction to divulge any information that might incriminate him in a court of law, this wanna-be mass murder quickly secures the services of a top-notch lawyer from a white shoe firm and, under the advice of his attorney, clams up.

This scenario, of course, is far from hypothetical, the stuff of college philosophy classrooms and speculative magazine articles. It is, rather, a fairly accurate description of the events that have transpired since last week, when the Nigerian-born Umar Farouk Abdulmutallab was subdued in his attempt to bring down a Delta flight headed for the Motor City. While the Al Qaeda-linked 23-year-old gave his interrogators a grim preview of what may soon come from the hive of Islamist terrorism that is the state of Yemen, he has, according to federal officials who spoke with the Washington Post, “restricted his cooperation since securing a defense attorney.”

We are thus presented with a version of the proverbial “ticking time bomb” scenario. Sure, the threat may not be as immediate as those regularly defused by Jack Bauer on “24.” The impending attacks may still be in the early planning stages, weeks or even months from execution. But now we have a real, live Al Qaeda operative – fresh from a foiled terrorist plot hatched in a country fast becoming the center point in the war on terror – in our hands.

Surely we ought to be using the tools at our disposal to find out the who, what, where, when and how of the next potential mass casualty attack.

Would it be inappropriate or immoral to pour water over the face and into the nose and mouth of Abdulmutallab, thus generating a drowning sensation (but not actually drowning him) to obtain this information? What about putting him in a small box with a caterpillar, a technique approved in a 2002 Justice Department memo for use against Al Qaeda mastermind Abu Zubaydah, who harbored a known fear of insects? Do you think slapping him across the face a few times – hard – is acceptable, if it might mean saving the lives of hundreds?

Some, including the President and senior members of his administration, believe these techniques amount to torture, and insist that their use should be proscribed in all situations, lest they besmirch American honor. But the question of whether or not to use these methods is now moot, given that Abdulmutallab has been bestowed constitutional rights afforded to American citizens – including the right to remain silent and the right to legal counsel.

The strongest arrow in the quiver of those who argue against the use of enhanced interrogation techniques is that those being questioned oftentimes do not possess reliable information regarding future terrorist attacks. But that stipulation does not apply to Abdulmutallab, who, even if his knowledge of ongoing terrorist operations is spotty and incomplete, has bragged that he knows what’s coming. The foreign minister of Yemen has confirmed Abdulmutallab’s warnings, expressing his concern that “hundreds” of Al Qaeda militants are planning attacks from his country.

In light of this information, how can the United States government, the highest duty of which is to protect American citizens, allow this vessel of valuable information to sit silent?

We wouldn’t be faced with this problem had the President decided to label Abdulmutallab an enemy combatant, thus depriving him of most of the rights enumerated in the Constitution. But in March of last year, the Justice Department announced that it would do away with the term and its legal implications, all in its quest to shut down the detention center at Guantanamo Bay. By placing Abdulmutallab under the purview of our criminal justice system, we no longer treat him as an intelligence asset in a broader war against a declared enemy, but rather as a defendant presumed innocent, whose heretofore-unavailable “rights” to due process and a fair and speedy trial take precedence over all else.

We never gave these rights to Nazi saboteurs captured during World War II; after extracting what useful information they possessed, President Franklin Roosevelt ordered them hanged. It’s difficult to see why today’s enemy combatants are not treated the same way.

Those who advocate treating foreign terrorists as civilian defendants point to the cases of Richard Reid, the British “shoe-bomber” arrested on a Miami-bound plane in December 2001, and Zacarias Moussaoui, the “20th hijacker” and French citizen taken into custody a month before the 9/11 atrocities on an immigration violation. Both men were processed in the early stages of the just-declared “War on Terror,” when the government was still in the preliminary stages of setting up the military commissions system. In hindsight, they ought to have been tried as enemy combatants, as it would have spared the United States a great deal of money and resources, not to mention made their interrogations more effective. Had Moussaoui and Reid not pled guilty, their trials would have inevitably turned into the circus that Khaled Sheikh Mohammed’s is bound to become.

The question of what type of legal status we ought to grant Umar Farouk Abdulmutallab remains a live question with serious implications for the national security of the United States. As the situation now stands, with an untold number of plots in the works, treating this man as a criminal defendant requires us to count upon the discretion and good will of a would-be mass murderer.

Originally published in the New York Daily News


James Kirchick is a fellow with the Foundation for Defense of Democracies and a contributing editor for The New Republic.


  1. froylein

    1/4/2010 at 1:03 pm

    Jamie, I agree with the questions you ask in this post (partly because I’m a frequent trans-Atlantic flyer and anything but amused about those terrorists). And since I’m actually greatly upset at those terrorists, I’d go even further and ask why they cannot be labelled guerilla combatants in line with the Geneva Convention?

  2. AlexK

    1/4/2010 at 1:17 pm

    The longer we allow political correctness to cripple our Western nations in defending ourselves, the greater the death and mayhem will be for everyone later on when “conscientious” people throw all rules out of the window and revert to vengeance after the next couple of successful terrorist attacks.

  3. rozi

    1/4/2010 at 9:55 pm

    i don’t understand why the US is so lenient with these criminals.

  4. mark in east berlin

    1/5/2010 at 10:36 am

    it is shocking to see how backward in their thinking, even after years of the guantanamo fiasco, some people are. ignoring for a moment the moral black hole this article and its supportive comments seem to come from, the bottom line is that information obtained through torture is notoriously unreliable.

    if you want to throw out your own moral standing, because a morally reprehensible terrorist “bragged” about knowledge he may or may not actually possess, that’s obviously fine. just don’t expect any moral principles to be upheld in the future. terrorists are defined by their actions, not the office they hold or don’t hold.

  5. froylein

    1/5/2010 at 10:55 am

    Mark, there is a clear definition of what terrorists are and how they can be treated laid out in the Geneva Convention. My own moral standing is that people should be judged by their actions. The legal and moral premises are there. To conflate the morale of people that suggest to at least consider the legal options as they are with the morale of people that cowardishly hide their intentions and aim to kill or do kill civilians seems rather odd to me.

  6. mark in east berlin

    1/5/2010 at 11:52 am

    i’m not quite sure what you refer to when you speak of a “clear definition” of “what terrorists are” laid out in “the Geneva Convention”. which of the four conventions are you talking about? none of them uses the word “terrorist”. are you talking about the Additional Protocols which introduces the protection of resistance movements and guerilla action under certain conditions? the USA is not a party to the protocols and the protocols do not award protection to terrorists.

    you seem to be confusing the case of the Guantanamo-detainees and the discussion of their status as combatants with the issue at hand here, namely, whether a terrorist, who is, for all intents and purposes, an ordinary, if extremely dangerous, criminal should be treated as a human being and thus be treated equally to other criminals before the law – or whether such cornerstones of law and “civilization” do not apply to those that do not honour them, thus making them “less equal”, as george orwell said.

    in any case, the Conventions or the Additional Protocols cannot allow what is already illegal under the prohibition of torture. contrary to what this shameful article insinuates, the “interrogation techniques” described in the article do not just amount torture according to the belief of “some, including the President and senior members of his administration”, they are torture plain and simple. it should be obvious for the more extreme measures described in the article, it is no less true of the “slapping” (see the european gaefgen/daschner-case).

    torture is illegal, it is a ius cogens-norm of international law, countless violations of that norm not withstanding.

    advocates of torture advocate the means used by terrorists.

    so the answer to the the question “why shouldn’t we waterboard abdulmutallab?” should be: because we don’t want to be like him and we are not like him.

  7. froylein

    1/5/2010 at 12:32 pm

    Your argumentation denies terrorists a trait that is considered typical of (healthy) human beings, i.e. to take deliberate decisions (and accordingly suffer the consequences).

    In many Western states, we’ve found legal loopholes to kill off fetuses, in many states even when the fetus has already developed enough of a nerve system to feel pain. There are states considering or already permitting active euthanasia. There are states considering making the abortion of possibly handicapped fetuses mandatory. Every year, in countries as wealthy as the US, thousands of children die due to negligence and malnutrition.
    Our outsourced industries kill the environments, and down the line the livelihood of and people, in many take-off countries.

    We already don’t play by the rules of humanist, enlighted ideals.

    To the Islamists that justify terrorist activities against the West, Western people are already below animals. The question the article raises is what moral highground justifies the deaths of innocent civilians and what means are justified in preventing those deaths.

  8. themiddle

    1/5/2010 at 1:09 pm




    There was nothing shameful in this article. It raises legitimate and important questions. The first and foremost question it asks is whether the process of saving the lives of its innocent civilians warrants methods of interrogation that are harsh but not brutal. Then the question becomes whether the process of potentially saving those innocent civilian lives warrants brutal torture or not.

    It’s very easy to say that what differentiates us from the terrorists is that we don’t behave like them, but what is the life of your wife or girlfriend worth? If you knew that your wife would be targeted next week and you could potentially learn the details of the attack and have a chance to prevent it by, say, putting a man who hates dogs in a closed cage with a dog for a week, would you do it?

    If you wouldn’t do it because you equate terrorism – that is, the murder or attempted murder of civilians – with putting a proven, known terrorist into a room with a dog or waterboarding him or even just plainly physically harming him, aren’t you acting immorally yourself? Isn’t protecting your girlfriend’s life or limb more important that hurting the man who can provide information that saves her? This isn’t an abstract game. You either stop the pending attack or you don’t. It’s easy when it’s somebody else’s girlfriend who is on the line, but be honest and tell us what you think your girlfriend’s arm and face are worth. Aren’t they worth the beating this man would have to receive to divulge the plan?

    I would also ask how you can claim with a straight face that a terrorist is simply a dangerous criminal? A criminal does not seek to hurt or kill people for political reasons. In fact, the terrorist is the equivalent of a soldier in that he kills for political gain. The difference between the terrorist and the soldier – at least the soldier of enlightened countries – is that the soldier does not target civilians whereas the terrorist does. However, by acting for political reasons and essentially seeking to murder for those political reasons, the terrorist is acting as if he is at war, not as if he is burgling a home. The rules of war and the rules regarding soldiers at war are different than the rules regarding criminals. You’re trying to evade that salient point in this article by equating a terrorist with a simple criminal which he is absolutely not.

  9. Ephraim

    1/5/2010 at 2:24 pm

    There’s a war on. We had better start acting like it.

    These guys are not criminals, they are enemy soldiers. They should be treated as such.

    Try ’em in a military court for the attempted murder of innocent ncivilians, convict ’em, and stand ’em up against a wall.

  10. mark in east berlin

    1/5/2010 at 3:27 pm

    it is interesting, but not surprising to see that the most backward “arguments” are dragged out here in defence of a disregard for basic respect of the rule of law. the old hypothetical “what if you had a gun and could save your girlfriend by shooting the terrorist?” – come on, you have to be older than revert to that. and abortion? where did that come from?

    i am not denying a terrorist the capacity to take deliberate decisions and to even suggest i do is to deliberately misunderstand what i am saying. i am saying that there is reason to NOT make a terrorist suffer certain consequences because of decisions he deliberately took. and i am quite happy to know that i have the backing of a number of human rights-treaties and centuries of human “progress” for my position.

    you arguing in favour of torturing this or any terrorist are trusting a terrorist more than decades of human rights-development. the whole argument in favour of torture is based on the assumption that the information obtained through torture is credible enough to warrant further action. given what we know about the “facts” people reveal under torture and our knowledge of the operation of modern terror networks (composed of cells that usually have no knowledge of cells operating parallel to them, no matter what they might “brag” about), that assumption is bullshit. which makes the arguments in favour of disregarding the rule of law when dealing with terrorist even more shameful.

    the questions “raised” by this article have been debated over and over again, the author of the current article doesn’t even have the guts to call torture by its name, but insinuates instead that president obama and his administration are wrong in calling torture what it is.

    how can i claim with a straight face that a terrorist is simply a dangerous criminal? because that’s what he is. his acts are criminal, his political motivation makes him more dangerous than other criminals, as he cares less about whether or not he will be caught or injured/killed as a result of his actions.

    a soldier never kills for political gain. a soldier kills because he is ordered to shoot in a specific direction. it is also not true that a soldier of an enlightened country does not target civilians, soldiers have and continue to do so, however – and that is a crucial difference – they never target civilians for the sake of targeting civilians (though some practices in WWII and the Vietnam War – for example – would probably don’t stand against that rule), but for a (bigger) military objective, whereas the terrorist criminal targets civilians for the terrorizing effect.

    people here seem so carried away by the war-metaphor that they’ve lost sight of the values that are at stake. i am not evading any “salient point” made in this article, i am merely surprised how quickly some people are falling back into the george w. bush-positions that clearly have so helped in the “war on terror” since 9/11. and yes, that last bit was irony.

  11. froylein

    1/5/2010 at 3:46 pm

    What values? Really? You talk values and ask how abortion comes into play (and abortions are not the only example I mentioned of how reality clashes with human rights in Western nations)? What values do Western countries hold by that are not led ad absurdum by what we do? Can anyone seriously still claim human rights matter to if the very day after the much reported about execution of a British citizen in China one of the biggest economic players of the West closes a major deal with the People’s Republic? Who are you trying to fool?

    a soldier never kills for political gain. a soldier kills because he is ordered to shoot in a specific direction

    There have been many soldiers that actually were convinced of the political goals they were serving for. WWI is a famous example of how many young men signed up voluntarily as they believed the propaganda.

    BTW, a soldier may also shoot to protect their life.

  12. mark in east berlin

    1/5/2010 at 3:53 pm

    it’s an interesting line of argument – because human rights are abused in the cases x, y and z, there’s no point in protecting them in the case of xyz. let’s hope your case is never the case of xyz.

    BTW, a soldier may also shoot to protect their life.

    yes, and a soldier may also commit a war crime. or refuse to follow an order. or be shot. there’s a lot of things a solider may do.

    There have been many soldiers that actually were convinced of the political goals they were serving for. WWI is a famous example of how many young men signed up voluntarily as they believed the propaganda.

    yes, and WWI is a famous example of the futility of war and of young men disillusioned by propaganda, killed for no reason but the stubbornness of their leaders.

    • froylein

      1/5/2010 at 4:10 pm

      That was not the line of argumentation but the line of argumentation was that human rights are obviously of little consideration to the very politicians that now choose to apply certain rules now under the cover of human rights. Ethical behaviour is pretty obviously not their consideration.

      You claimed a soldier kills because he is ordered to shoot in a certain direction. What I merely did was pointing out that soldiers might have other motivations behind shooting, and you instantly try to downgrade those motivations by equalling them to exceptions to the common practice. If you did not understand what I said, read closely again: I did not excuse WW1. I could as well have mentioned the many soldiers that are currently serving in Afghanistan, Iraq, Somalia but to name a few places that signed up because they believe they can actually help people there. If you put the undoubtedly legitimate right of a soldier to protect their life on the same level as commiting a war crime, then your moral stance needs some fine-tuning pretty urgently.

  13. themiddle

    1/5/2010 at 4:02 pm

    Mark, I forgot how self-righteous you can get.

    Sorry to trot out the “old” arguments and I sure am glad we didn’t “surprise” you in any way, you sophisticated progressive.

    But you didn’t answer my questions directly.

    You are right that research shows that torture is unreliable. But it isn’t 100% unreliable and that research focuses on the fact that sometimes the wrong man is tortured. What about a situation such as this, where a man is indicating that he knows of pending attacks? You seem abundantly certain that it’s best to treat him like a regular criminal, as if murdering 300 people is like a really wild burglary or something. It isn’t.

    It isn’t. Murdering 300 people is an astounding, inhuman act that destroys countless families and communities, not to mention the murder itself.

    Dancing around the fact that it is a political crime also won’t help your case. The fact is that he is a soldier in a war. It’s just that for some reason, it is not called a war and he isn’t called a terrorist or a soldier by many of the same organizations whose backing you proudly claim. But it is a war and he is a soldier intent on harming as many civilians as he can.

    It’s not a metaphor, it’s the truth. He perceives himself to be a soldier in a war, his trainers perceive him to be a soldier in a war, his actions are those of a soldier in a war except that he makes it a point to target civilians and intends his attack to serve the goal of terrorizing a population and generating publicity.

    The bottom line appears to be that you are fine locking him up, assigning a lawyer and letting him remain quiet even if he knows things about another upcoming terror strike. You do this while proclaiming some holier-than-thou philosophy as superior to those who would doubt your ideas. Some of us are still seeking to figure out whether preventing the death of multitudes is more or less ethical than infringing on this man’s safety while in custody.

  14. mark in east berlin

    1/5/2010 at 4:30 pm

    If you put the undoubtedly legitimate right of a soldier to protect their life on the same level as commiting a war crime, then your moral stance needs some fine-tuning pretty urgently.

    except that i don’t.

    middle: which question did i not answer directly? the hypothetical would i terrorize a terrorist in order to potentially save my wife? well, i am hardly a government supposedly respecting the rule of law, so i am not quite sure how my answer to that hypothetical would be in any way indicative of what a government should be allowed to do.

    The bottom line appears to be that you are fine locking him up, assigning a lawyer and letting him remain quiet even if he knows things about another upcoming terror strike. You do this while proclaiming some holier-than-thou philosophy as superior to those who would doubt your ideas. Some of us are still seeking to figure out whether preventing the death of multitudes is more or less ethical than infringing on this man’s safety while in custody.

    yes, that holier-than-thou philosophy is called respect for the rule of law and the prohibition of torture as well as basic notions of equality, justice and fairness. it is true that these values are held in total disregard by those terrorists protected by them, as in the current situation, but that’s exactly what sets a government that respects those values apart from terrorist organisations.

    there’s a rather lengthy book called “The End of Reciprocity” by Mark Osiel on “Terror, Torture and the Law of War” discussing these very issues. Osiel rightly points out that the problem in the current conflict is that the values that people like i uphold are based on reciprocity, that is that our enemies at least conform to the same basic ideals and that there is no basis for that assumption in the current confrontation. however, Osiel still comes to the conclusion that there is more harm in allowing torture than potential benefit, partly because it “is inconsistent with the professional self-understanding of our armed forces, derived from a democratized virtue of martial honor. Torture and arbitrary detention are also incompatible with our national identity, with what we – in the sense of “We the People” – have represented at our best and to which we abidingly aspire.” (p 395-6) reading the comments here, Osiel has a different “We” in mind than the majority of the commentators here represent.

  15. Ephraim

    1/5/2010 at 5:46 pm

    Why are enemy soldiers who attempt to (or succeed in) murdering innocent civilians deserving of equality, justice, and fairness? They are, perhaps, deserving of a military tribunal, but that is about it.

    I do not understand this obsession people have with treating terrorists as though they are 1) no different from someone who robs a bank, and 2) as deserving as a citizen of this or that state to the legal protections afforded citizens of this or that state under the laws of this or that state.

    I’m not a lawyer, but where does it say in the Constitution that foreign nationals who perpetrate acts of war upon the US or its citizens are entitled to the protections afforded US citizens under that Constitution?

    Can somebody help me out here?

  16. mark in east berlin

    1/5/2010 at 6:00 pm

    i think that’s a very promising starting point – different rules for people based on nationality, i think it’s never been done before. one rule for the Timothy McVeighs, one for the Umar Farouk Abdulmutallabs.

  17. LB Chasid (in La)

    1/5/2010 at 7:34 pm

    Mark Berlin You are a world class act. When the Terrorist kidnap someone you know and cut their head off with a rust knife then you will see things a different way. Until then read many of the literature written by Daneil Pearls family.

    We should dip this terrorist slowely into boiling oil until he tells us everything we want to know. Fact or Fiction he deserves a most painful death in the name of Allah.

    Hows that for extreme?

  18. themiddle

    1/5/2010 at 7:47 pm

    “yes, that holier-than-thou philosophy is called respect for the rule of law and the prohibition of torture as well as basic notions of equality, justice and fairness.”


    “Yes, we apologize to the 300 families and the multitudes of children, parents, spouses and friends of the deceased whose lives are forever changed in the most horrible way as they contemplate this horrendous murder of their beloveds. We especially apologize because we knew this might happen and we had a man in custody who hinted as much.

    However, in holding up our values as a society, instead of putting him in a small room with an animal he abhors to attempt to learn the details of the attack, we let him remain silent, retain counsel who forbade him from speaking up about the pending attack to prevent self incrimination, we fed and clothed him just like the other burglars and drug users in our prison and we are extremely proud that these are our values. Consider your deceased loved ones as martyrs for our cause.

    We sacrificed your irreplaceable beloveds so that those of us who refuse to accept the premise that this is a brutal war will feel better about their society. They reject the concept that this war has different rules than previous wars, such as, for example, refusal by the other side to wear uniforms or other identifying features that differentiate them from citizens. They reject the concept that targeting civilians with the intent to terrorize a society is a far worse crime than the worst crime committed by our criminals, because it is a calculated murder and maiming of multitudes of innocents usually in order to generate publicity. If you don’t get that, you are backward hardasses who should go have a talk with a real progressive.

    Yes, our society is indeed superior to theirs and we are better people. If your loved one isn’t coming home tonight, it is because as a superior and better people, our values are that we believe your deceased beloveds’ entire lives, and your lives, are worth less that a hard interrogation of the man who knew enough to help us prevent their deaths. And anyway, why bother torturing or even harshly interrogating him since the statistics show the information gained is unreliable. Did you really think we could stop this?

    But don’t you worry, bereaved folks. This man – let’s call him a freedom fighter so as not to offend those who understand that our society must stand by basic notions of equality, justice and fairness – will now enjoy the fruits of our advanced legal system for free and when we are done locking him up, he will receive food, medical care, the right to study whatever he wishes, the right to say whatever he wishes and the right to breathe the air that your beloveds will never breathe again.”

    I like it, Mark. You’ve convinced me.

  19. Ephraim

    1/5/2010 at 11:50 pm

    Are you for real?

    Every single country that I know of has different rules for citizens and foreigners.

    And I’m not talking about a foreigner who commits a crime in the US, such as, again, knocking over a gas station.

    I am talking about people who are, by their own admission, engaged in a war against the United States. Someone has to explain to me why they deserve the protections of the US Constitution. They are enemy soldiers and should be treated as such.

  20. Ephraim

    1/5/2010 at 11:54 pm

    Just to make sure I’m not being misunderstood, I take this position because the Underwear Bomber is a foreigner. We have to treat people like Timothy McVeigh differently because he is (was) a US citizen. Someone needs to explain to me what LEGAL obligations we have to foreign enemy nationals under US law.

    I don’t give a single flying fuck about what “international” law might have to say about the matter.

  21. mark in east berlin

    1/6/2010 at 2:12 am

    5 examples of how some people have learned nothing from the last 70+ years.

    • themiddle

      1/6/2010 at 3:25 am

      Of course, Mark. Even though these comments and similar conclusions were formed by individuals who have varied political views, varied religious views, varied educational backgrounds, varied family situations and dynamics, somehow to you they indicate that we’re all stuck in WWII but you are the font of wisdom and modernity.

      Let’s all hope there is no plot that this man knows about or that if there is one, that it falls apart before somebody tries to implement it. I’m sure even you would agree with that sentiment. Of course, we could actually DO something to increase the odds of their failure to implement the plot, but then we’d be giving up the values of justice and fairness that the “criminals” are owed and we should focus instead on providing them with justice and fairness. So what if dead victims have justice and fairness taken away from them?

      By the way, I like your debating style: ignore any reasonable claims made by your opponents and simply attack their claims generically as unreasonable/old/tired/etc.

  22. mark in east berlin

    1/6/2010 at 5:37 am

    it’s a good thing there’s currently a US government that doesn’t share themiddle’s point of view on these questions. apparently, the last one did and look where that got us.

    as for my “debating style” – where do i ignore reasonable claims made by opponents? i asked froylein to clarify what the reference to the Geneva Convention was meant to imply, which resulted in abortion being brought to the table. i suggested that torture doesn’t even work, so all moral and legal reasons not to do it might as well be ignored when we realise that it doesn’t even bring the results we would use torture for – to which you’ve replied (i’m paraphrasing), “if torture hasn’t worked yet, that’s cos we simply tortured the wrong people or not hard enough, so let’s torture some more.” i pointed out that international law prohibits torture to which ephraim replied i don’t care what international law says, show me where in the constitution it says that we have to treat all men equal. to which i indeed, can only say, that i hold some truths to be self-evident.

    • froylein

      1/6/2010 at 10:04 am

      Apparently, the current US government doesn’t share that view universally, which I’ve given several instances of. There’s no moral highground serving as a normative principle of Western societies. The “norms” are already applied arbitrarily. I suppose making presumptions about people as backwards is great debating style for you while ruminating on pre-conceived notions of how you contrast as progressive, but if you really were, there would be more of a universal substance to your morale than select cases. I touched weak spots of the pseudo-progressive wannabe social-elite for a reason – to highlight their hypocrisy. You proved me right. Thanks for that. From now on I’ll consider all your claims regarding progressiveness and higher morale nil and void.

      You might be surprised to learn that I’m actally a pacifist, but there is idealism and there is the need to consider what is actually going on. The enemy doesn’t “play by the rules” anymore, so why may we not ask in how far the current rules do offer options to counter the enemy more effectively? If I am “backward” in my thinking for demanding that a country should consider all options possible in defending its citizens, so be it. I assume the preservation of life does matter to us backward people of the conservative variety.
      I, for one, believe that an important step against terrorism is bringing education and fair growth to the poor regions of this world. I, therefore, donate to organisations that make such changes happen. Delving into idealism and Western cultural snobbery in absolute ignorance of what kind of people we are dealing with are what brought us the mess we are in. The different intentions don’t matter in the slums of this world where hate-driven preachers recruit their following, they don’t matter on Western university campuses where foreign students from Africa and South-East Asia often feel excluded and turn to those that welcome them with arms wide open (Ironically enough, none of my leftist friends that consider themselves progressive have got any actual foreigners for friends.), they don’t matter at the production lines where people perform cheap labour for Western luxury at wages the labour forces of Europe would cringe at etc.

      To paraphrase the renowned Middle East expert Peter Scholl-Latour, Islamists can deal and even argue with Israel because Jews to them are people of the book, they haven’t rejected god. In contrast, they think of the secular West as animals.

  23. Ephraim

    1/6/2010 at 2:52 pm

    You’re completely missing the point, Mark.

    First, I am not talking about torture. I am questioning the outlook that assumes terrorists are no different from some gang member who knocks over a gas station. They are not. They are soldiers engaged in acts of war against the US, most often against civilians, and they should be treated as such. Abdulmutallab is not a common criminal, he is a POW. I don’t believe that the protections afforded US citizens under the US Constitution extend to enemy foreign nationals. You may think that they should, but I completely disagree. If you want to convince me, you need to cite US law and precedent.

    That brings me to international “law”. The whole “international law” thing is just a dodge to try to make the US (and Israel) knuckle under to what people in places like China, Zimbabwe, Libya, and Venezuela think the law ought to be. That is, it is a ruse to rob us of our sovereignty. I do not believe that I have to pay any attention to the opinions of Robert Mugabe, Cesar Chavez or Moammar Khadaffi on international “law”.

  24. mark in east berlin

    1/6/2010 at 4:25 pm

    i absolutely agree with the analysis that human rights are invoked and applied arbitrarily, but i still don’t see why that would serve as a justification for continuing to do so. the fact that, for example, islamic countries or other countries with shocking human rights records invoke human rights to attack israel is – for me – no reason to stop demanding respect for human rights, be it from israel, which has – considering the situation the country is in – a pretty good record or those islamic countries in which women have hardly any rights at all.

    it is true that the enemy doesn’t play by the rules and i keep acknowledging that. yet i believe that there are rules “we” should stick to, the prohibition on torture being the prime example, a, because “a little torture” only leads to more torture and i do feel that there are some standards even the hypocrisy that is our “western” world should hold up, in letter, but also in spirit and b, because it doesn’t even work. i quoted Osiel, not because he appeals to a type of idealism i subscribe to (American “We the People”), but because i thought it might resonate more here than my european idealism.

    Guantanamo and Abu Ghraib are examples where an ignorance, rather the willful breach of “our” rules has only brought more enemies that feel even more justified to break those rules. yes, reciprocity has ended, but the bush-administration has lend a helping hand. and so does the thinking behind the text that sparked my comments in the first place.

    we are talking about a text here in which a person, yes, a terrorist who almost killed 300 people, but a person nevertheless is reduced to a “vessel of valuable information”, an object. i find that abhorrent and i will indeed stop arguing about this in a minute.
    but you’re probably saying “but he brought it upon him himself” – to which i would say, correct, he did. but i firmly believe that reducing humans to something sub-human is wrong, no matter what they may have done. i fully respect that a victim finds it impossible to look a perpetrator that way, but that is one of the reasons why governments should be guided by laws, not personal feelings of vengeance.

    and ephraim, international law isn’t what mugabe, chavez or khadaffi “say” nor is “a dodge to try to make the US and Israel knuckle under”, in the case against torture, it is a legal document (and long standing practice). and if you are questioning the outlook that assumes terrorists are no different from some gang member who knocks over a gas station, you are questioning an outlook that i certainly don’t share. both are criminals, but they’re certainly different. you’re saying terrorists should be treated unlike other criminals and foreign terrorists should be treating unlike national terrorists. fine. feel that way. if you don’t understand “all men are created equal”, i can’t help you.

    i have in another discussion on here acknowledged that it is indeed true that the rules of IHL are intended for conflicts very different from the one Israel is facing and also very different from the “war on terror” and that there is merit in debating which rules might be better. but to deny that “our” enemies are humans just because “they think of the secular West as animals” puts us on the same level, no matter what justification we may bring forward. to reduce a criminal, a terrorist, a person capable of making rational choices to a “vessel of valuable information” (by putting trust in his “bragging”, no less) is just that. and to use this current case to try and defend the options already tested under the bush-administration is to ignore that precisely this approach contributed to the escalation.


  25. LB Chasid (in La)

    1/6/2010 at 4:46 pm

    Can we all just step back and realize that we are being lectured about morality from a German? I mean every single German supported the Nazis and helped murder millions of Jews along with millions of others that didnt fit into the cookie cutter aryan nation.

    Now that I am done with my sarcastic stereotyping lets stop wasting time with this guy.


  26. mark in east berlin

    1/6/2010 at 5:15 pm

    oy vey.

  27. themiddle

    1/6/2010 at 5:29 pm

    I have no idea what the point of LB Chasid’s last comment is. Oy vey is right.

    Mark, you wrote, “we are talking about a text here in which a person, yes, a terrorist who almost killed 300 people, but a person nevertheless is reduced to a “vessel of valuable information”, an object. i find that abhorrent and i will indeed stop arguing about this in a minute.”

    The question you keep evading is whether it is moral to put at risk another 300 people in order to treat this man like he’s a “person” as opposed to a “vessel.”

    Don’t you think that this is hypocritical, to say the least? Just because you know who he is but you don’t know who the 300 victims of the plot he may be aware of are, does not mean they are sub-human or fodder for somebody else like him. Isn’t behaving that way far more immoral than treating him “like a vessel?”

  28. mark in east berlin

    1/6/2010 at 6:04 pm

    i don’t evade that question, i answer it differently than you would. i think those 300 people are at risk whether “we” torture this guy or not – torturing him is no guarantee they will be saved.

    the “ticking time bomb”-situation never exists – and does not exist in this situation here – in the way that proponents of torture in such situations argue. you are justifying employing questionable means not by what you know they will achieve, but by what you think they might achieve. you are basing this hypothesis – especially in the current scenario – on claims made by someone delusional enough to consider himself justified to kill 300 innocent people. i would not trust a person like that, i certainly would not be prepared to throw out principles i hold to be very important based on his claims. we know enough about the limits of torture in producing truthful information and we also know enough about the organisation of terror networks to have to be very sceptical of the possibility that torture could produce the information that would save the next 300. and we also should know that by crossing those lines in the past, we have already produced more “justification” (at least in “their” eyes) for these acts of terror.

    i will try to illustrate this one last time by reference to the (german) gaefgen/daschner-case. gaefgen was a law student who kidnapped a boy from a wealthy family. he was tracked down by police and identified as the kidnapper, but they couldn’t find the boy. gaefgen clearly knew where the boy was, which is why the police did indeed threaten to torture him. gaefgen eventually revealed where the boy was – the police then found out that the boy had been killed before by geafgen before the police had identified gaefgen as a kidnapper. the police chief that authorised the torture-threat (daschner) was found to have resorted to torture (unlawful threats) by the european court of human rights and also found guilty of unlawful behaviour by german courts. the idea here guiding daschner clearly was the same idea that is brought forward to justify using abdulmutallab “like a vessel” here. which is why daschner’s actions are justified by some (though not the german courts). but the case also quite clearly shows that the assumption used to justify stepping over previously accepted boundaries doesn’t even hold up in such a comparatively simple case: the information obtained illegally didn’t save anyone.

    • themiddle

      1/6/2010 at 6:51 pm

      Are you saying that because sometimes the information is wrong or misleading, that it is always wrong and misleading? That’s not the case. Sometimes the information is correct and valuable. If even one quarter of the time the information is correct and viable and getting it would have saved 300 or even two people, isn’t it worth getting?

      Your assertion that since this mass murderer or potential mass murderer is “delusional,” is also weak. How do you know? How do you know whether he’s delusional? Do you really think suicide bombers are delusional? They may be, but just as likely they are not. Being a believer in a cause or a religion to a point where you are willing to kill yourself or others does not necessarily indicate delusion. It may mean simply that your belief is fervent or that you value your actions more than your life. A person such as this had to adhere to a program where he smuggled explosives aboard an airplane with security checks. In 2001, a group of people hijacked 4 planes and flew them into the heart of New York. Nothing delusional in either case. On the contrary. You need to be cool and organized. I would trust information from these people as long as I take precautions to ensure they’re not sending me into a trap. I would trust it more if they were scared of me.

      Your story about the Gaefgen/Daschner case is astonishing. They should shut down the European Court of Human Rights permanently and send all of its justices as well as the German judges who found him guilty of unlawful behavior to formally apologize both to Daschner and to the boy’s mother. Saving that boy should easily take precedence over the safety or well-being of the kidnapper and if all that was done to him was to use words to threaten him, then this is not even an issue. Scaring a man is torture and unlawful? That is absurd. How can you even contemplate that this is moral? That boy’s life was the paramount issue at hand and not doing everything in one’s power to save him would be immoral. Potentially saving a plane-load of civilians is just as moral.

      The only point that I’ll concede is that this is a slippery slope and that permitting threats today could lead to an irrational beating in a month or a year. That is something that needs to be controlled and prevented and I’m certainly not advocating torture. However, a tough interrogation with implied threats? To save lives? Absolutely.

  29. Ephraim

    1/6/2010 at 7:32 pm

    I have said at least a couple of times that I am not talking about torture. What is your problem?

    And, yes, foreign terrorists (jihadi soldiers) who perpetrate acts of war against innocent US civilians most definitely should be treated differently from a petty crook who robs a gas station.

    Again, please name me a country that does not put citizens and foreign nationals in different legal categories.

    Seriously: are there any Constitutional scholars here? If It can be proven to me that US law requires that the protections of the US Constitution must, as a legal matter under US law, be extended to foreign nationals who commit acts of war against the US, I will concede Mark’s point, but until then, no.

    All men may be created equal, but they do not necessarily, as a matter of law, have equal rights everywhere.

    I cannot vote in German elections and you cannot vote in US ones. I can work in the US without a permit, but I assume I would need a permit from the government to work in Germany and could be deported if I were working there illegally. Are we equal or not?

  30. LB Chasid (in La)

    1/6/2010 at 11:02 pm

    You didnt get it middle? Look at this from the outside.

    Look at how much text has been typed. How much time invested. What is the outcome off all of this? Have we reached any conclusion? Do you think one more 1000 words or less comment is going to help him see the light and vice versa?

    This terrorist s.o.b. deserves to be burned at the stake. Cruel and Unusual 100%

    It is my opinion that killing 300+ men women and children is cruel AND unusual.

    I believe in equality and just repercussions for choices in life.

  31. Ephraim

    1/7/2010 at 3:45 am

    Wait, what?

    A police chief was found to have broken the law because he put a scare into a guy who had kidnapped and killed a child?

    What is this, some kind of joke?

    • froylein

      1/7/2010 at 11:15 am

      Ephraim, that’s exactly how the majority of Germans, lawmakers included, felt about the case. Reports showed that that guy more than less provoked police into stepping beyond / above their legal boundaries, fully aware when they’d be crossing the line thanks to his studies. The outcry actually was not about torture but that even threatening of employing violence in an interrogation was considered a violation of the law.

      Mark, do you never wonder why “principles” are applied arbitrarily and in what “direction”? (BTW, did you read about amnesty international’s reporting on death sentences in the US last year – more in 11 months than in one “Bush” year even though the President’s got the right to pardon in most cases?) Who benefits from the arbitrariness? The US’ reputation in Islamist eyes doesn’t as they stare in amazement at how the West will forsake their next kin.
      There already were terrorism and Al Quaida before Bush took office. I don’t think their existence have got much to do with what particular President is in power but with the situation they feel themselves to be in, who (presumably) causes this situation and the “solutions” they are offered.

  32. mark in east berlin

    1/7/2010 at 1:20 pm

    Ephraim, that’s exactly how the majority of Germans, lawmakers included, felt about the case.

    not the majority of lawmakers i have come across, but it’s certainly a nice statement.

    • froylein

      1/7/2010 at 1:23 pm

      It’s certainly a nice detail brought up by polls newspapers covered back when.

  33. mark in east berlin

    1/7/2010 at 1:36 pm

    fair enough, i do wonder then why there’s no move towards changing the law, if the majority of lawmakers considers the law and the way it was applied in this particular case, “a joke”.

    • froylein

      1/7/2010 at 1:42 pm

      That’s because it takes more than personal opinions to create laws.

  34. mark in east berlin

    1/7/2010 at 1:47 pm

    not if you are a majority of lawmakers, but whatever.

    • froylein

      1/7/2010 at 1:59 pm

      It sure does. Sensitivities of prospective / possible coaltion partners are always considered.

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