Monday, May 18, 2009


Charles Krauthammer has weighed in on the torture debate, and was highly criticized on the left for discussing two scenarios in which torture might be acceptable: (1) the ticking time bomb and (2) a high-value terrorist who refuses to divulge crucial information that could save innocent lives. He responds to his critics by discussing Nancy Pelosi's (and the Democrats') vascillating moral compass about the whole concept of torture:

My critics say: So what if Pelosi is a hypocrite? Her behavior doesn't change the truth about torture.

But it does. The fact that Pelosi (and her intelligence aide) and then-House Intelligence Committee Chairman Porter Goss and dozens of other members of Congress knew about the enhanced interrogation and said nothing, and did nothing to cut off the funding, tells us something very important.

Our jurisprudence has the "reasonable man" standard. A jury is asked to consider what a reasonable person would do under certain urgent circumstances.

On the morality of waterboarding and other "torture," Pelosi and other senior and expert members of Congress represented their colleagues, and indeed the entire American people, in rendering the reasonable person verdict. What did they do? They gave tacit approval. In fact, according to Goss, they offered encouragement. Given the circumstances, they clearly deemed the interrogations warranted.

Moreover, the circle of approval was wider than that. As Slate's Jacob Weisberg points out, those favoring harsh interrogation at the time included Alan Dershowitz, Mark Bowden and Newsweek's Jonathan Alter. In November 2001, Alter suggested we consider "transferring some suspects to our less squeamish allies" (i.e., those that torture). And, as Weisberg notes, these were just the liberals.
Krauthammer concludes:

You can believe that Pelosi and the American public underwent a radical transformation from moral normality to complicity with war criminality back to normality. Or you can believe that their personalities and moral compasses have remained steady throughout the years, but changes in circumstances (threat, knowledge, imminence) alter the moral calculus attached to any interrogation technique.

You don't need a psychiatrist to tell you which of these theories is utterly fantastical.
Victoria Toensing there is notes that most of the people who want to start prosecuting Bush Administration officials for 'torture' haven't even bothered to read the infamous "torture memos":

Sen. Patrick Leahy wants an independent commission to investigate them. Rep. John Conyers wants the Obama Justice Department to prosecute them. Liberal lawyers want to disbar them, and the media maligns them.

What did the Justice Department attorneys at George W. Bush's Office of Legal Counsel (OLC) -- John Yoo and Jay Bybee -- do to garner such scorn? They analyzed a 1994 criminal statute prohibiting torture when the CIA asked for legal guidance on interrogation techniques for a high-level al Qaeda detainee (Abu Zubaydah).
Read it all; and then read this, and you will come away with the conclusion that the possibility of using enhanced interrogation techniques like waterboarding was not something that was arrived at lightly; nor without careful examination of law and legal precedent. The "intent" was always to obtain information that might prevent future civilian deaths in the U.S. and not that a "detainee suffer prolonged physical or mental suffering"; nor were such methods ever to be used except for high value detainees like Abu Zubaydah, "one of the highest ranking members of" al Qaeda, serving as "Usama Bin Laden's senior lieutenant." Who, "according to the CIA" had "been involved in every major" al Qaeda terrorist operation including 9/11, and was "planning future terrorist attacks" against U.S. interests.

Most importantly, the lawyers were told that Zubaydah -- who was well-versed in American interrogation techniques, having written al Qaeda's manual on the subject -- "displays no signs of willingness" to provide information and "has come to expect that no physical harm will be done to him." When the usual interrogation methods were used, he had maintained his "unabated desire to kill Americans and Jews."

The CIA and Department of Justice lawyers had two options: continue questioning Zubaydah by a process that had not worked or escalate the interrogation techniques in compliance with U.S. law. They chose the latter....

But now, safe in ivory towers eight years removed from 9/11, critics demand criminalization of the techniques and the prosecution or disbarment of the lawyers who advised the CIA. Contrary to columnist Frank Rich's uninformed accusation in the New York Times that the lawyers "proposed using" the techniques, they did no such thing. They were asked to provide legal guidance on whether the CIA's proposed methods violated the law.

Then there is Washington Post columnist Eugene Robinson, who declared that "waterboarding will almost certainly be deemed illegal if put under judicial scrutiny," depending on which "of several possibly applicable legal standards" apply. Does he know the Senate rejected a bill in 2006 to make waterboarding illegal? That fact alone negates criminalization of the act. So quick to condemn, Mr. Robinson later replied to a TV interview question that he did not know how long sleep deprivation could go before it was "immoral." It is "a nuance," he said.

Yet the CIA asked those OLC lawyers to figure out exactly where that nuance stopped in the context of preventing another attack. There should be a rule that all persons proposing investigation, prosecution or disbarment must read the two memos and all underlying documents and then draft a dissenting analysis.
Jeff Goldstein notes in a comment thread on one of his posts:

I think it ought to be known to those who’d target civilians that we’ll do whatever it takes within the boundaries of the law to make sure they are unable to target civilians. And yes, that includes things that they might consider torture but that we do not — such as having scantily clad women interrogate them, or by having Jews in the room, in addition to things like sleep deprivation, temperature changes, wall standing, and waterboarding.

With all these thoughts in mind, let's segue into a discussion of ethics and morality--topics any discussion of torture must consider.

Ethics is the branch of philosophy that tells us how to behave in the world, or what is the proper course of action, particularly for situations like this where one is trying to determine what is "right" versus "wrong". On a fundamental level, ethics is really the manner in which we codify our most important values and act on them.

In a comment thread from a 2006 post at The Belmont Club, Wretchard, speaking about the barbaric Islamic fundamentalist terrorists with whom we were at war, wrote:

The brilliance of the new barbarism is that you cannot fight it without destroying your own value system into the bargain.

Traditionally the solution has been to consider wartime a discontinuity, when civilization's rules are suspended. It becomes possible, for example, to lay waste to the Monte Cassino Abbey. Berlin was bombed without regard for its buildings, churches or people.

The alternative is to create methods of fighting so discriminating that we can literally shoot between the raindrops. But that creates a different problem, for we will need an intelligence system so comprehensive that it will become intrusive.

Either way, the war cannot be won without cost. And the fundamental fraud foisted on the public is to claim we can have war without horror, conduct an intelligence war without dishonesty and cunning and obtain victory without sacrifice.
His two points are particularly relevant in the discussion of torture. To the extent that we can, we have tried to maintain "civilization's rules" as much as possible, while at the same time suspending them when the situation demands--i.e., adherence to a life-affirming value system that requires you to protect innocents who might be harmed by evil. Indeed, when it comes to the issue of torture, one might even say from an historical perspective that the administration went overboard to try and find techniques that were sufficiently uncomfortable and even unbearable; and which would elicit the necessary information without inflicting lasting harm on the recipient.

In this, they were obviously successful.

In fact, I would say that the Bush Administration used an ethical system that appropriately put the value of innocent life higher than that of the dubious, or so-called "rights" of a terrorist, who happens not to value life at all. Not only that, but the previous administration also managed to identify and use techniques that effectively "shoot between the raindrops" of the multiple definitions and conceptualizations of torture. True, they identified techniques that were harsh; but they were also techniques which did not truly endanger the life of the terrorist (who himself does not value life in the least and would consider such scruples about it "weak").

To say that the use of such techniques is unethical seems to me to entirely miss the purpose of ethics.

If you consider the purpose of ethics--to codify and act on one's values--then the Bush Administration behaved in an exquisitely ethical manner. They codified the most important of American values and acted on them; and in doing so managed to keep America safe from a terrorist attack for more than eight years.

When it comes to the issue of torture (and, by the way, I am one of those who after considering all the facts, do not consider waterboarding "torture"), I am fully confident that we will not destroy our values; and that our overall moral heading can be recovered should we need to temporarily deviate from the direct course of the moral compass that guides us. Because, in order to combat and defeat this new barbarism, we must confront it and be willing to do whatever it takes to defeat it.

Because if we do not defeat it, then it will be clear that, far from considering life important in our culture, we actually do not value life enough.

If we appease or ignore the evil that terrorism and Islamic fundamentalism has loosed upon the world, it will continue to menace everything we hold dear; and sooner or later, that is what will destroy us and our values with us. No matter how rigorously we adhere to "morality" or how much restraint we demonstrate to the enemy's provocations, they will always up the ante.

We will be defeated with our "superior" sense of morality and pride in our superhuman restraint intact.

I rather think that it is more important for us to win, certain in our own hearts and minds of the endurance of our own values; and willing to do what is necessary in order to defeat that which threatens our life and our liberty.

Our uncertainty about our own values is what is destroying us already. Value by value, we are ceding morality to an enemy that joyfully destroys life; laughs at liberty; and mocks our entire historical tradition. Look how willing much of the West has been to compromise our cherished freedoms in order to accommodate the enemy's threats.

Soon, we will have compromised away all that matters to us; our civilization and all its values chipped away, little by little, as it is taken over by the barbarians who love death more than we love life.

If the cost of this war must include acknowledging the horrific reality of the kind of death and terror the enemy will bring to us if we allow it; if we must dishonestly and cunningly conduct an intelligence war and be willing to obtain victory knowing that it will require sacrifice; then so be it. I love to read fantasies as much as anyone, but in the real world, the good and virtuous whose cause is just do not always automatically win.

When America is finally cornered or down to the wire; when it comes down to the scenarios outlined by Krauthammer and others; then we must allow our own barbarism to surface to combat theirs head to head; AND, we must be prepared to live with the consequences, including even guilt and remorse. Otherwise, everything we hold dear, everything we aspire to become and all that we have achieved, will forever perish from this earth.

These barbarians we fight--who do not let reason or life interfere with their jihad; who abide by no treaties, follow no rules, and scorn the very values upon which western civilization is founded--must be defeated. We could have lived with them they did not insist that we must become what they are or die. They are the ones who have defined the ground rules (or the non-rules) of this conflict; and eventually, we will have to meet them at their level--or they will win. We should hold tight to the thought that it is they who have set up the playing field on which the war is being waged.

In defense of Nancy Pelosi and the left who now want to prosecute those who found a way to negotiate a path between the raindrops...well, incoherent, outraged indignation and preening self-righteousness are often the weapons of choice for today's postmodern moral relativists. But please don't suggest that they follow a moral compass. Their compass always has been and always will be primarily self-serving and spinning wildly, dependent on the political currents of the moment.

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