Originally Posted by
LawVol
What is your basis for detaining the wife? Assuming, of course, that you have actionable intel to indicatethat the husband is in fact a terrorist, what is her status? From the limited facts given, it would appear that she has no connection to the doings of her terrorist husband (being married to him simply isn't enough unless you're willing to subjet our wives to the same rules).
Next, what is the status of the two sons? Assuming from the limited facts given that they are also unconnected to the father's doings, they would also appear to be civilians. What would be your basis for detaining them? What would be your basis for (supposedly) facilitating the torture of them? What the scenario appears to advocate is the torture of civilians for the purpose of possibly obtaining information from a third party.
This leads intot he next question: what will be done if she refuses to provide the information? If the sons are not then sent away, word gets out and our credibility with respect to this type of threat is done. If the sons are sent away, again what is the basis for doing so? Again, assuming from the limited facts that they are civilians, the scenario stretches much further than a "collateral damage" scenario (although I really can't stand that term). Here, you aren't simply attacking a valid military target wherein the military value outweighes that damage to civilians; you're actually targeting civilians. This is what the terrorists do. Are we really willing to slide this far down the slope? If so, what does this say about our legitmacy? What does it say to the civlian community in the AOR that we're trying to win over.
No, I don't see this as legal for the simple fact that the legal question must be examined in light of taking the threat to its logical conclusion. This means examining it as done above, IMO.
Now, substitute the wife for a known terrorist and threaten him/her with torture and we, possibly, have a different situation. Philip Bobbit, in a book I'm reading now, argues that in today's informationized world, the information a terrorist holds is akin to his weapon and until he surrenders that "weapon" he may still be engaged, so to speak. I like this argument but its needs more exploration.
Of course, the above is a legal analysis constrained by the limited facts available (don't you love lawyers? - there's a reason we do this), you also asked about the morality of this scenario. I do not viewed morality and legality as always synonymous. Law is law but morality may differ depending upon the person(s) involved. So, as to morality, the issue is really moot except when considered in light of overall legitimacy. To what extent does morality factor into legitimacy? Who's morality is in play? Can legitimacy be obtained when a given plan of action is legal but possibly not moral?
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