CIA - Torture and the Politics of "Noblesse Oblige"

Having observed a range of reactions to the (heavily censored) report outlining the operation and methods (“Enhanced Interrogation Techniques”) employed by the CIA in the so-called black sites around the world…a few words regarding the responsibility of the powerful may be relevant. First, however, I wish to acknowledge certain facts that are not in dispute, war is cruel, the enemy is often barbaric beyond comprehension and emotions run high. Therefore, it may be argued, for precisely the aforementioned reasons, that when combatting such an enemy and/or ideology the democracies (western or otherwise) must observe the same standards of behavior in hostile environments when projecting power beyond their borders, that they observe and enforce within their own sovereign territories.

Notwithstanding this, there is certainly a need to recognize the matter of degree and cruelty perpetrated by enemies (especially those not subject to the rules of a nation-state or IHL)...Without condoning the actions of the CIA, it is reasonable to acknowledge that the US in general certainly does not by degree or norm behave in the arbitrary, extreme and summary fashion as many of its enemies (e.g. al-Qaeda or today ISIL). It should be noted that the report suggests that there were a number of deaths that resulted from the so-called enhanced methods of interrogation employed by the CIA. Whatever the case in detail, it may be argued that the “Rule of Law” is paramount, and the principle of democratic states' abiding by the law (or being even more zealous in their adherence to it and the standards of behavior they practice both in their homeland and internationally during war) is more important in comparison to their enemies. This is because, to do anything but, is to step assuredly onto the top of that very slippery slope that leads inexorably to the erosion of the moral authority of the democracies, international human rights standards and the legal system that governs the international realm. While politeness may be suspended during war, the rules of war and laws of armed conflict are clear and must be applied.

In the spirit of the words of Justice Robert A. Jackson, Chief Prosecutor of the major defendants at the Nuremburg War Crimes Trials (1946), to uphold the rule of law will continue in the vein of the greatest humanitarian, dare I say universal, civilizational “tribute that power has ever paid to reason” despite that the powerful had so recently been stung by injury and were flushed with their own sense of right and victory. Following from, and since, this act of magnanimity in "staying the hand of vengeance," the act of entering into war, the conduct of war and actions in post-war environs must not ever be allowed to become anarchical or unlawful. The just war principles and legal standards must be upheld, or the democracies forfeit their claim to being a force for civilized behavior and civilizing principles. This, no matter what the enemy does, is inviolable. This is more than restrictions on cruelty...it is a set principles and legal precedents (based on moral principles) that have evolved over centuries to safeguard civilians, non-combatants, the human rights of prisoners, the weapons available for legal use, the degree of force to be applied (proportionality), stop crimes against humanity, war crimes and unjust or illegal wars. There are many seminal and philosophical foundations and theorists that contributed to the evolution of this code that has been enshrined in international law. It is not just the noble mind but the moral and legal standards of the society from which a nation-state projects its military force that will determine the conduct of its soldiers (including intelligence operatives). Democracies must adhere to this or I propose that justice and “civilization” will be undermined.

I concede that there are always variables to be considered in the heat of combat, though I would still suggest that the "Rule of Law" and the moral imperative for adhering to the law is paramount on the battlefield or in interrogation rooms wherever they are located (despite the duress the group-think and stresses that exist in equal strength in these facilities as on the "hot" battlefield). As the Hedley Bull (1977) "Rationalist” approach to International Relations theory argues very compellingly and practically, the rule of law and national custom will preserve civilization, its behaviors and moral authority. In the end, the state and its agencies act within the law or they step onto a very slippery slope. There is in reality no relativist argument that holds against this position. I fully accept that war crimes are committed by all sides in conflicts. That's why US Army Lt. Calley was tried for war crimes over the unlawful killing of villagers in My Lai, Vietnam, and Australian soldiers were investigated for cutting the hands from dead enemy fighters in Afghanistan recently, even for very good operational intelligence reasons. These are examples of democracies upholding the standards of behavior under the laws of war. I would note that it is not only soldiers and leaders from democratic states that are subject to military justice or referred to the ICC for war crimes, exemplar, Slobodan Milosovic, Saddam Hussein, Charles Taylor, as well as Congolese and Nigerian warlords more recently (even in December 2014).

Excesses must not be allowed in war and neither high emotions nor any other circumstances justify impunity. Surely this is why laws exist, and why military professionals train assiduously and are required to maintain their composure (as well as moral and legal accountability) in highly stressful circumstances i.e. the battlefield (hot and cold). This is why officer cadets (and their civilian counterpart intelligence operatives and interrogators) are thoroughly versed and trained at their respective colleges and academies in the laws, moral standards and the requirements of command and rules of operational conduct during war. While I understand that sometimes breaches occur, they must be subject to the law. I stress the reason for this is to ensure that the most horrific act of state sanctioned violence (war) does not become a completely barbarous, carnal free-for-all. Despite maintaining this position I am empathetic if not supportive of opposing views that advocate fighting “fire with fire”. This is because I understand and sympathize with the passions and emotional stresses of combat and war. This is one of the clearest examples of why war is such a tragedy. Thus I don’t absolve myself of human passions.

However, when I apply an objective perspective and analytical logic – in my most authentic attempt at Weberian analysis (Weber, 1958) - I am unable to reason or accept the position that either "might is right" or even that "right is might," when it represents the tyranny of the majority. I also refute the proposition that either of these positions is above the law, or that due to the complexities and high stresses of the "battlefield" (including stresses and pressures present in interrogation centers that are away from the physical bullets and bombs), crimes under the laws of war or International Humanitarian Law are justifiable, acceptable or deserve to be overlooked. The unfortunate consequence of not adhering to the rule of law has been described by a number of scholars and legal practitioners in recent years. As aptly expressed by Geoffrey Robertson QC (2012) (international jurist and scholar) the perception of the US and its legitimacy has suffered greatly since it led “George W. Bush’s benighted invasion of Iraq [in 2003 and] in the Middle East today [it] has much less political influence, a good deal less military clout and very little public approval [with] 70% of Middle Easterners” perceiving the US and Israel as the most serious threat to regional stability. So if this was the case before the release of the report on the CIA activities in contravention of international law and the Geneva Conventions and protocols in the recent weeks we may surmise that the perception and credibility of the democracies especially the US is now likely to suffer further.

Again, the issue is certainly not a simple one. It is not simple because all too human passions, understandable fears, jingoistic patriotism, and prejudices militate against objective and reasonable responses in respect of the threat and insecurity present during war. The great tension between order and security, and, human, political & civil rights is never going to be easy or simple in an ambiguous, asymmetric world. However, the rule of law is, in my view, the best and most effective institution for maintaining a foundation for civilized behavior. The only option is to enable states and state actors (individuals and agencies) to operate above or outside the law, which, while in some instances may be expedient and/or effective, exposes civilization to the slippery slope effect, and the prospect of descending into anarchical, unregulated discord. The notion of pre-emptive action (or pre-emptive defense) may seem logical but at its core it means operating on many of the same ethical bases, principles and prejudices as the ideological terrorist or criminal.

The answer is not simple, or at least it is not necessarily comfortable, but over the long term democracy and its agents must take the high ground or those who support institutional criminality (at international law) will have grounds to criticize the democracies for their hypocrisy, and to justify or divert attention from their own illegal actions. A case in point is exemplified in this exact response to the report on CIA torture whereby many anti-US, anti-democratic states (themselves guilty of grievous human rights violations) have been able to reasonably criticize and condemn the US (CIA) for its unlawful human rights actions. Unfortunately, the end does not justify the means in this instance ...whether or not the end was or was not aided by the means of torture-based interrogation in the short or the long run. What better solution than “The Law” and the courts? By no means are they perfect but what option leaves civilization with a better standard and code of moral and humane conduct in the face of primitive barbarism ...I suggest none at this point.

Authors note: In the title I do not mean to infer that the CIA constitutes a form of US nobility. Rather, the reference is to the figurative “responsibility of the powerful”.