Thursday, January 15, 2009

Torture and the Coercion Calculus

I thought this symposium from the NY Times on the effects of "coercive interrogation techniques" on prosecuting terrorists was interesting. The symposium includes an admission by Andrew McCarthy of National Review that information obtained from such acts should not be admissible evidence against a terrorist. In reviewing the symposium - and especially McCarthy's statement, what struck me was the role of the system of military commissions in enabling torture. What I mean is that even advocates of using these techniques (whether or not termed "torture") as a form of intelligence gathering acknowledge that this evidence should not be admissible for purposes of determining a suspect's guilt or innocence.

So if we are all in agreement that such information may not and should not be used in a criminal prosecution, it follows that an interrogator would ordinarily be forced to weigh the value of the information the interrogator hopes to obtain against the value of ensuring that the suspect will eventually go free and possibly return to terrorism. But the military commissions system, which has lower standards of evidence that were once widely believed to permit evidence procured through coercion, eliminated this calculus (although ultimately it was determined that such evidence would not be permitted). And so, in the mind of the interrogator at the time, the techniques chosen (whether or not we term them torture) had no relevance to whether the suspect would eventually walk fact, the use of techniques designed to obtain confessions (whether those confessions were true or false) had the extra benefit of likely assuring that the suspect would be given a stiff sentence.

More at memeorandum.