February 24, 2009

A SIMPLE THOUGHT EXPERIMENT:

The Torture Trap: Will Obama Really Ease Up?: Just because he's closing Guantanamo doesn't mean the new president can reform all those real-world Jack Bauers. Or convict them. Or stop them from wiretapping your phone. The reckoning for the Bush administration's interrogation memos may surprise you. (John H. Richardson, 2/24/09, Esquire)

Way back in November, before I even broke out the crystal ball on Barack Obama, I made something of a prediction in this column: "It may be time for Democrats to start slowly ratcheting back their outrage on the Foreign Intelligence Surveillance Act, alternative terrorism courts and even some forms of aggressive interrogation. Otherwise, it's going to be awkward for them to adjust to the realities of life under Democratic rule." [...]

Take the interrogation issue. On the left, the answer is simple: Bush tortured, so we need war crimes trials to re-establish the rule of law. But this will never happen. Consider the sequence of events. A few months after 9/11, the CIA captured a top Al Qaeda strategist named Abu Zubaydah. They believed he had knowledge of coming attacks and wanted a legal opinion on how rough they could get during interrogation. Getting somewhat rough seemed to be an option because terrorists were never covered by the Geneva Conventions, and the Convention Against Torture defined torture as "extreme" physical or mental pain.

The job of defining extreme pain went to John Yoo, a lawyer often mentioned in the category of Future Defendant in a War Crimes Trail. Critics like Scott Horton have written that Yoo was part of a "torture conspiracy," writing dishonest briefs "for the explicit purpose of covering the torture project with impunity and pushing it forward by overriding the judgment of serious lawyers at the Pentagon and CIA." But even before entering government service, Yoo had written a long book arguing that a president can break the law in the time of war. This contrarian argument made him an academic star. As to his infamous definition of the extreme pain as equal to organ failure or death, Horton insists that Yoo simply lied about the law, ignoring contrary arguments. But I spent a week with Yoo last year, attending his law classes and traveling with him, and I'm fairly certain that Yoo really believes the things he wrote. A jury could convict him of bad lawyering, but not of lying to advance a criminal conspiracy.

Under Yoo's memo, with Bush's approval, the CIA waterboarded three people. It seems extremely unlikely that a jury would convict CIA officers who acted under a decision from the Justice Department and a go-ahead from the president. It seems equally unlikely that a jury would convict a president who made that decision in the months after 9/11.

And what about Guantanamo, you say? Didn't Susan Crawford — the woman Bush put in charge of bringing Guantanamo prisoners to trail — admit last month that we tortured a prisoner named Mohammed al-Qahtani?

This is the heart of the problem: We have come to a national consensus that waterboarding is torture, which is why the CIA stopped after three abuses. But the interrogation techniques used on al-Qahtani included sleep deprivation, prolonged isolation, nudity, and prolonged exposure to cold — none of which rise to the level of torture individually. As Crawford notes, "This was not any one particular act. This was a combination of things."

These are the "enhanced" interrogation techniques. They're what Donald Rumsfeld was talking about when he wrote his famous note asking why standing was limited to six hours. To the civil libertarians, this is evidence of the torture conspiracy. But the whole point of Rumsfeld's question is to stay on what he considered to be the permissible side of the line. You can certainly denounce his judgment, but it's unfair to say that he was gleefully embracing torture.


Suppose, for the sake of argument, that Osama bin Laden hadn't been killed at Tora Bora but was instead captured tomorrow in Pakistan. Is it even possible to construct a morally coherent argument that we ought not then waterboard him to get him to reveal any other terrorist plots and assets?

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Posted by Orrin Judd at February 24, 2009 10:08 AM
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