Someone recently asked me for my thoughts on the Justice Department investigation into allegations that American soldiers, intelligence agents, and other agents of the state have tortured detainees since the terrorists flew planes into the World Trade Center and the Pentagon. This has him quite worried, mainly that such an investigation might chill efforts on the part of state agents to deter, prevent, or investigate future attacks. Our troops and operatives, he frets, would refuse to do the necessary hard work of forcing information from prisoners if they worried about later prosecution.
This is for me a feature, not a bug–agents of the United States Government have no business torturing information out of prisoners. Moreover, the state should have very little authority to categorize human beings as threatening to society outside the court system. Citizens should hold agents of the state accountable for violation of national and international law. Agents acting in secret, especially, must know that their actions will be scrutinized and evaluated for effectiveness and conformity with law and policy. This is really a very straightforward principle-agent problem between the citizen and the State.
But what if this scrutiny really does have a chilling effect on operatives in their attempts to gather useful intelligence on terrorist and other enemy activity? I say, so what? Read the rest of this entry »