Sunday, January 25, 2009

Thursday talk radio update

Dennis Miller (sorry, Dave) was making the case for waterboarding. O'Reilly has been doing the same thing lately.

I have yet to hear either acknowledge a fundamental problem with their position: Waterboarding is torture (the author of the linked post, Marty Lederman, is now deputy assistant attorney general in Obama's Office of Legal Counsel, so his opinion carries weight). As such, waterboarding violates U.S. law and the Geneva Conventions, not to mention our national ethos.

Of course, we could change U.S. law to endorse torture if we wanted to. George Washington would spin in his grave if we did that, but he's probably used to spinning by now. But do we really want to repudiate the Geneva Conventions? Bad idea.

Not only that, failing to prosecute those who authorized waterboarding also is a bad idea. I'm as queasy as the next guy about devoting a lot of time and energy to running down crimes of the previous administration, but we really have no ethical alternative. Either nobody is above the law, or some people are. And if some people are, then this isn't America anymore.

UPDATE: Andrew Sullivan weighs in and adds a great quote from "A Man for All Seasons."


Dave Rye said...

So if I advocate returning to stretching guys on "the rack" (Hey, if it was good enough for Caligula...), will you switch from Miller back to me?

Anonymous said...

I've disagreed with you before on this issue, and I'm afraid I'm still not buying your arguments. Waterboarding doesn't violate US law. Supposedly it violates a new executive order signed by Obama, but even that isn't clear, It violates the Geneva Convention, but the Geneva Convention doesn't apply to terrorists who don't dress on the battlefield as combatants.

As this Politico article shows, there's a lot less to the Obama order than meets the eye:

Perhaps the days of waterboarding are over, but the days of harsh interrogation are not. Obama isn't going to take the chance of having a terrorist attack on US soil during his watch.

As for harsh interrogation violating our national ethos, I've argued before that there's a long history in this country of rough treatment of enemy combatants. Mind you, not a lot. But there is some history; it is something we can't always avoid. Especially given the nature of the world today, where one person with a nuclear bomb has the potential to do inconceivable damage.

If you had a national vote, and asked Americans if they would support harsh interrogation of a terrorist if it meant learning the location of a nuclear bomb in an American city before it could be detonated, they would overwhelmingly endorse the idea. And unfortunately, that is not a farfetched scenario today. I've read, and I am not sure that this is true, that plane hijackings have been stopped and possibly lives saved due to this technique used on Gitmo prisoners.

As Americans, we recoil at what happened at Abu Graib. But I'd bet you'd get better than 90 percent of Americans to support harsh interrogation in the above scenario. Might be better than 95 percent.

As for prosecuting those who were involved in waterboarding, I read a piece by Alan Dershowitz in which he said the chances of conviction were between slim and none .... so why bother. The government won't release a lot of material because it is classified, so there would be grounds for dismissal. Even if cases went to trial, it wouldn't be too hard for the defendants to persuade a jury how bad these guys were, and that there are no clear laws against what was done.

The only benefits I can see from such a thing is that it would be a jobs program for lawyers and it might get the hard-core partisans to finally grow out of their BDS. (or maybe not; they might become so inflamed by acquittals that they'd join the Taliban)

David said...

It may not surprise you to hear that I give considerably more weight to Lederman's view about the law than to yours. And it's just flat wrong to say that the Geneva Conventions protect only uniformed combatants.

As for the "ticking bomb" scenario, a few points:

1. In real life, that scenario hardly ever occurs. It just doesn't.

2. Laws probably shouldn't be based upon the worst possible hypothetical one can imagine. If such a scenario ever does occur, and torture saves lives, then I will fully endorse President Obama's pardon of the torturer.

3. The defense you give of torture is age-old: It's OK because it works. That is precisely the position that U.S. and international law reject. Otherwise, there is no law against torture.

I agree that convictions might be hard to obtain, and I would not argue that we should make a case if one can't be made. But that decision should be made only after all of the facts are examined carefully.

Kirk Dooley said...

Waterboarding and other forms of torture don't work, because after a certain amount of time the drownee will tell his drownors anything they want to hear to end the session -- whether the info is true or not (and in most cases, it's usually not).

Besides, by doing these things, we lose the moral authority to be upset when somebody does things like that to one of ours. (Although the thought of Dennis Miller or Dave Rye on "Das Rack" is not altogether unpleasant. ;-) ) The fact that we've stood on the moral high ground on this issue (any evidence so obtained would be thrown out of any court of law in the country in a heartbeat; it's this "piece of paper," Mr. Bush, that's called the Constitution) since The Revolution (when the Brits were not so kind) is why lots of folks try to emigrate to this country -- some risking their very lives to do so.