What Would Winston Churchill Do? Hackery Abounds

Author's Note: This blog post has two purposes
1) to explain my views on torture and
2) to demolish the arguments set forth tonight by Andrew Sullivan with respect to torture and Churchill.

And just so we're clear, here's a shout out to you, Bryce, who asked me to write it.

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I was disheartened to hear something Andrew Sullivan said tonight on the subject of torture. Sullivan, who referred to OLC counsel, John Yoo, as a "legal hack" in all but name, might actually read either Yoo's books or law review articles, rather than disparaging him. If he had, he would have seen that the argument he made tonight about a president needing Congress to declare war is a practice that has been virtually ignored throughout the entire 20th century. (Indeed the last president to ask Congress for a declaration of war was F.D.R.)

Before I dive into the question of torture, it's important to give you some sense I should say that I take a page out of my high school mentor's notebook when it comes to matters of torture. For two summers and through a year, I worked as a paid research assistant with Alan Dershowitz. (He hired me after I was randomly selected to debate him in high school.) It was Dershowitz who first resuscitated the idea of a "torture warrant". Here's his position on torture, which, I wholeheartedly support.

My basic point, though, is we should never under any circumstances allow low-level people to administer torture. If torture is going to be administered as a last resort in the ticking-bomb case, to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice.

As a normative matter, I oppose torture, but I'm not so ignorant as some to believe that it doesn't work. When opponents of torture make this argument, I need only demonstrate one instance of a "ticking time bomb" terrorist to make my point stick. I could provide half a dozen or so terrorists, but without coloring it, I think I'll just take this example of a twelve year old boy who was killed by a kidnapper. The full details from Mark Bowden are here. At the time, Bowden was working on an article about interrogation.

And, as it happened, while I was working on this story, there was an article in The New York Times about a crime in Germany where a kidnapper had taken a 12-year old boy, and had buried him alive. He went to collect the ransom, and was caught. He was in custody, and refused to tell the police where he had buried the child. The police chief in this case threatened the kidnapper with torture, and he promptly told him where he buried the boy.

No, having studied this matter for quite awhile, I wish it were easy to say that "torture doesn't work". On the contrary, torture is rather efficient at getting information, which in a war with no definable front line, is much better than a war in which uniforms fight one another. In state to state combat, there's an incentive for both parties to follow things like Geneva and in state to state combat there's little likelihood that soldiers on the ground know that much beyond the orders they must carry out.

Understandably, this is not the case when we pick up would be terrorists who have the knowledge and the contacts that we could follow back to the base. We're waging war on a network and as such, battlefield victories won't matter nearly as much as the destruction of key individuals in that network. In such a war, information is everything. When you torture someone and they tell you something, you can go and verify that statement. If the person lied, then you can resume torturing. Now if you were to disrupt that network, you would score a tremendous victory because everytime that network had to promote members, there would be a burn through rate. Think if you were to compare it with the internet. You certainly wouldn't target this blog to shut down the internet. You'd target Facebook, Google, or YouTube. You'd go after the big targets in the hopes of disrupting the networks.

Returning to the topic of torture, it has a rich history. Sullivan likes to make recourse to history, especially Nazi history, in arguing that the United States should stop torturing suspected terrorists for actionable intelligence. Here's an argument he elsewhere and made tonight about how the Germans "tortured" and how we, Americans, are following in their wake. The title of the article says what Sullivan suggested tonight: "Bush's torturers follow where the Nazis led."

So is “enhanced interrogation” torture? One way to answer this question is to examine history. The phrase has a lineage. Verschärfte Verneh-mung, enhanced or intensified interrogation, was the exact term innovated by the Gestapo to describe what became known as the “third degree”. It left no marks. It included hypothermia, stress positions and long-time sleep deprivation.

The United States prosecuted it as a war crime in Norway in 1948. The victims were not in uniform – they were part of the Norwegian insurgency against the German occupation – and the Nazis argued, just as Cheney has done, that this put them outside base-line protections (subsequently formalised by the Geneva conventions).

Ilan directed me to Godwin's Law, which states that the longer a conversation goes, the likelihood that Nazism goes to one. By invoking Hitler, Sullivan hoped to make the moral claim that torture is bad without demonstrating evidence. Sullivan than turned to someone he said inspired him on the torture debate, Winston Churchill, who despite the equivalent of a 9/11 virtually every day during the Blitz, refused

1) to detain a citizen indefinitely and
2) that no Nazi was ever tortured by the British.

Neither statement is true.

On the first, Churchill's government did detain people indefinitely. These included both British and foreign nationals. On the first point, I quote from Churchill and the Jews by Martin Gilbert, p. 176-177,

"From the outbreak of the war in September 1939, tens of thousands of 'enemy aliens' had been arrested and interned in Britain. Some were German Nazis then resident in Britain, some were German anti-Nazi refugees, and others were German citizens who happened to be in Britain when war broke out, including many German and Austrian Jews, among them Churchill's pre-war supporter Eugen Spier."

In August 1940, he authorized "the liberation 'of considerable numbers' of the internees," but importantly not all. On August 24, 1939, Britain's Parliament passed the Emergency Powers Act, which included provisions for detaining both British nationals (Defence Regulation 18B). The first wave of detainees were German or Austrian naturalized British subjects, but as time wore on it was used to detain writers or politicians.

One person that was detained was none other than the British fascist Sir Oswald Mosley, who was detained along with his wife for essentially being sympathetic to Hitler and Nazism. Mr. Mosley was a British MP before he was detained!

On the second point, there's considerable evidence that Britain actually did torture Nazis for actionable intelligence, much as we seek to do today to those savages who present an existential threat.

Long after the war had ended, Britain ran two secret prisons to torture Nazis. One of these prisons, dubbed the "London Cage" was located in one of London's nicest neighbors, but between July 1940 and September 1948 served as the country's secret prison.

Here's how the Guardian describes the treatment of some of its inhabitants.

Official documents discovered last month at the National Archives at Kew, south-west London, show that the London Cage was a secret torture centre where German prisoners who had been concealed from the Red Cross were beaten, deprived of sleep, and threatened with execution or with unnecessary surgery.

Mind you that much of the torture occurred after the war had ended. Unfortunately, there was another secret prison. According to the Guardian,

As horrific as conditions were at the London Cage, Bad Nenndorf was far worse. Last week, Foreign Office files which have remained closed for almost 60 years were opened after a request by the Guardian under the Freedom of Information Act. These papers, and others declassified earlier, lay bare the appalling suffering of many of the 372 men and 44 women who passed through the centre during the 22 months it operated before its closure in July 1947.

Just who were these people?

Initially, most of the detainees were Nazi party members or former members of the SS, rounded up in an attempt to thwart any Nazi insurgency. A significant number, however, were industrialists, tobacco importers, oil company bosses or forestry owners who had flourished under Hitler.

By late 1946, the papers show, an increasing number were suspected Soviet agents. Some were NKVD officers - Russians, Czechs and Hungarians - but many were simply German leftists. Others were Germans living in the Russian zone who had crossed the line, offered to spy on the Russians, and were tortured to establish whether they were genuine defectors.

And were some of the people there who shouldn't have been? Absolutely.

Many of Bad Nenndorf's inmates were there for no reason at all. One, a former diplomat, remained locked up because he had "learned too much about our interrogation methods". Another arrived after a clerical error, and was incarcerated for eight months. As Inspector Hayward reported: "There are a number against whom no offence has been alleged, and the only authority for their detention would appear to be that they are citizens of a country still nominally at war with us."

Now to be fair, Churchill was no longer PM at the time of Bad Nenndorf. (He had been defeated in July 27 of '45, and Bad Nenndorf was created in August 1, 1945, but it seems fair to suggest he or his government knew about such places.) I'll spare you the gory details, but I recommend you read the two articles here and here.

None of this should come as any surprise to us. That the British government detained enemies and killed detainees -- many of whom were Nazis -- is certainly true. It would follow then that they are not a credible example for our modern age.

Naturally, we know that Churchill himself recognized that people fighting without uniform could be shot and that the niceties of war did not apply to such persons. Churchill, students of history will know, was captured by the Boers during the Boer war. In My Early Life, Churchill admitted that as he had been fighting the Boers who had captured him and thought it very likely that he would be executed for fighting in a "half uniform." (He was a correspondent, as well as a participant in the conflict.)

He writes in the Eland edition, p. 254. [The emphasis is mine.]

My gloomy reflections took a sharper and a darker turn when I found myself picked out from the other captive officers and ordered to stand by myself apart. I had enough military law to know that a civilian in a half uniform who has taken an active and prominent part in a fight, even if he has not fired a shot himself, is liable to be shot at once by drumhead courtmartial.

Obviously the Boers did not execute Churchill, yet that that was a possibility in his mind suggests that the argument laid forth by Sullivan and his allies is a weak one.

For those who are interested, I would direct you to CMC alum, Assemblyman Chuck DeVore's remarks on Churchill and the war on terror at this blog. The comments started my thinking and I am grateful to Mr. DeVore for directing my thoughts.