Iraqi Food Update

How did I miss this? There's an Iraqi restaurant in NYC now. The Chowhound entry has mixed reviews, but it confirms that they serve tishreb laham. The NYTimes entry is relatively vague, but atmospherically appealing. A mandatory visit the next time I'm in NYC

The Question's No One's Asking

Over the past few days, there's been a tremendous amount of discussion about the prudential value of prosecuting torturers, and perhaps their legal advisers as well. The New York Times has even advocated that now-Judge Jay Bybee should be impeached for his role as lead drafter of the legal memos in question. 

In a variety of places, people have alluded to, or even stated explicitly, what one might call the Nuremberg Rule that following orders is no excuse for crimes, especially war crimes. I support that standard, and nothing that follows should be at all taken as an argument against that.

But we do need to recognize that there's a problem here: people whose very jobs are secret probably have trouble getting third-party legal advice. They're usually not lawyers, so they probably don't have the knowledge to see how one-sided and ineffectual the arguments presented are. I've read memos that led to lawyers being disbarred that were less dishonest in their presentation of relevant case law and argument.

When we put patriotic people in conditions where we tell them it's necessary, ordered, and legal, it's simply hard for anyone, regardless of character, not to trust in that legal claim. This is particularly true when the very act seems shocking to the conscience. Of course most of us would naturally believe that such an act would only be ordered, could only be ordered, if it was legal and utterly necessary to keep your country safe. 

So how do we make it possible for people who work in a secret world to get actual, proper legal advice? 

I'm not a lawyer, but my understanding is that the laws covering classification mean that they can't usually talk to outside counsel, even under the seal of attorney-client privilege. I also strongly suspect that the interrogators involved won't have the ability to sue the lawyers who gave that advice. The list of privileges that apply, such as state secrets, sovereign immunity, the fact that they weren't representing the interrogators, and, oh yeah, that one of them is a judge now, makes it pretty hard for the people who willingly followed that advice to gain redress. Overall, those rules make sense in the context of broader law. 

But these problems arose in a state of exception. If the facts are as they have been presented so far, we need a means for individuals in classified situations to get independent legal counsel. Even if you think that these interrogators should have been able to make this decision on their own, the fact is simply that it didn't happen enough. Having lawyers they could check with, that would not quash lingering doubts, but rather consider them genuinely and render an impartial opinion, would increase the likelihood that people would refuse illegal orders. Not being in that profession, I have no clue what such a legal capability would look like, but it sure seems necessary.*

If you believe that torture's wrong, don't just condemn it, or its advocates. Try to find a way to make it much harder in the future.

*As is broader oversight, greater focus on these issues in confirmation hearings, legal reforms, etc. 

Some Western camp (I know the Pict) or granite border keep

Via Andrew Exum, I see that the Department of Defense is considering creating 

[A]n experienced cadre of officers and senior enlisted soldiers, who would rotate between assignments in Afghanistan and at their home stations until the end of hostilities. 

By doing so, the Pentagon hopes to end a problem that has plagued the effort in Afghanistan—the lack of familiarity with local conditions by U.S. forces who rotate in and then depart after a year, just when they are beginning to understand the area or the mission where they are assigned. 

“These would be small groups who would deploy together for shorter periods, going back and forth to the same place and the same mission again and again, so they would know the culture and the terrain,” said a senior Pentagon official briefed on the plan, who said the teams could be asked to conduct training or other specialized counterinsurgency missions.

 

This is a good idea, overall. We don't have enough local knowledge built up, and having the same people return to the area later can certainly act as a form of proof that our promises to and relationships with locals last longer than a single tour. 

But I also wonder about the possible downsides as well. How can we make sure that units don't develop the "Not-Invented-Here" syndrome, either in terms of intelligence evaluations of their own battlespace or in terms of bringing over new techniques from other areas? Sometimes this will make sense; Korengal's is different from northern Afghanistan is different from Helmand, etc. Sometimes, the accretion of assumptions and practices will be problematic. (Don't get me wrong, the US Army and Marines have had to learn new tactics and operational techniques, been challenged by enemy adaptation, and responded with throwing it all away and learning it all again with aplomb. Not saying that local commands can't, or even largely won't, do that. Just that it's something to keep in mind.)

Additionally, God forbid this happens, but if it gets adapted as a general practice, in this or some future war we may have a lot of Afghan COIN experts in US ranks just as the same time as we get involved in another country where the insurgency has wildly different organization and tactics. (Yes, Dr. Gentile's critique of FM 3-24 as being too focused on beating Maoists probably has a point to it...) Remember, some British troops who fought in Malaya also fought in Kenya, with rather different results...

Similarly, what will ensure that our soldiers don't develop (unconscious and wholly human) bias towards the parochial concerns of locals that sticks with them in future higher-level commands in the same country? This is probably to some extent unavoidable, and not necessarily a bad thing, but how do we avoid people going too native?

On the more academic side, what's the smart training cycle for the returning cadre while they're stateside? Repeated visits means a higher ROI on additional, area-specific training. Do we push localized language and cultural education at them (or, heck, PRT-complementary training by sending them to learn about agriculture, road construction, whatever)?

Finally, this is going to be a brilliantly useful data set for comparative study, so long as someone keeps track of it. I really hope that RAND, Booz Allen, etc, as well as the pure academic sector, get in on the ground floor. A Minerva Project grant devoted to this would be a smart call.

(Crossposted as a comment on Abu Muqawama)

Talk Like A Shakespeare Day

Mayor Daley of Chicago has apparently declared this Thursday, April 23rd, to be "Talk Like Shakespeare Day," according to CNN. There's a website, even, for you to go to and establish whether or not a given word was coined by Shakespeare.

Of course, this is good news, particularly since I had previously expressed moral reservations about celebrating Talk Like A Pirate Day this year, and I'm always eagerly looking for new dialect-based holidays. 

But it could have been even better if it was Talk Like A Shakespeare Day, where everyone gets to choose to speak like their favorite Shakespearean author. Francis Bacon! Christopher Marlowe! Klingons! Doctor Who!

Anyone up for making this a thing?

Your Daily Read

1. The most remote place on Earth?

2. Michael Oren to be Israel's Ambassador to the US - power, faith, or fantasy?

Poulos and Torture

James Poulos is a very, very smart man. But I'm utterly dumbstruck at his latest post on the new Postmodern Conservative blog.

He offers up, in admittedly what he describes as a brief post deserving followup, that:

[S]ince I’m on record as saying that one dunk at the waterboard is not torture, whereas three dunks is, I judge 130+ dunks clearly to be torture, regardless of whether the issue is whether we ought to torture or not.

He further amplifies in the comments section of that post that:

My argument turns on two points, one more controversial, I guess, than the other. The more controversial claim is that nothing done once can be torture. I admit that waterboarding is ‘a procedure’ whereas, say, ripping out someone’s thumbnail once is not very intelligibly described as a procedure. But it seems to be that ‘proceduralizing’ things is of the essence of torture. Jumping out of nowhere, ONCE, screaming and pointing a gun: not torture. Building a process or an ordeal out of this event — and the distinction between one and three is that once is once and three is a pattern, while two is ambiguous — does lead us into probable torture territory. The less controversial claim is that we should resist the temptation to do the moral calculus that leads us to a precise decision about how many iterations we can perform before switching over into torture, because under the sway of this temptation our moral calculus turns quickly, if imperceptibly, into a legal calculus, which allows us to justify our conduct in legal terms so as to avoid having to do so in moral terms.

This argument, though tempting, is disturbingly compromising. Because the problem with torture isn't that we hurt the prisoner too many times, or too badly. It's that doing it even once can break a man.

Singular acts can alter the way we see someone - or the way we see ourselves - traumatically and persistently. I can't imagine that a person who's been struck once by their spouse ever can entirely reassert the same sort of unconscious familiarity and trust in him that they once had. While being waterboarded, even once, men are willing to do anything to make it stop. 

How will the man being tortured know, or credit, that he only gets one waterboarding, one day of being forced to stand in a stress position, one time of being slammed up against the wall so hard that whiplash can only be "minimized," not prevented?  

 He has to live with the knowledge that the men holding his used pain, and his body's own preservation instincts, to break him, just once. His jailers have done something that takes away not only his freedom of movement but his freedom to even say "NO." Why won't they do it again? 

So: He has to live with the constant, will-eroding fear of each dragging moment, never knowing whether footsteps in the hall are the torturer's approach or just the changing of the guard. He has been made to betray himself. He may be made to do it again. 

And that is unacceptable to a nation built upon the freedom of the mind of man. 

Conservatives Opposed to Torture

1. Conor Friedersdorf powerfully links opposition to torture to legal traditionalism.

2. Philip Zelikow tells of how he tried to argue against the torture memos in the Bush administration.