When & Why To Use Waterboarding

A wonderful article written by Alan Dershowitz, one of the more clear headed Democrats on National Security, in the Opinion Journal today about the use of interrogation techniques that may make people cringe…but may be needed someday:

Most Americans–Democrats, Republicans, independents or undecided–want a president who will be strong, as well as smart, on national security, and who will do everything in his or her lawful power to prevent further acts of terrorism.

Hundreds of thousands of Americans may watch Michael Moore’s movies or cheer Cindy Sheehan’s demonstrations, but tens of millions want the Moores and Sheehans of our nation as far away as possible from influencing national security policy. That is why Rudy Giuliani seems to be doing surprisingly well among many segments of the electorate, ranging from centrist Democrats to Republicans and even some on the religious right.

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Consider, for example, the contentious and emotionally laden issue of the use of torture in securing preventive intelligence information about imminent acts of terrorism–the so-called “ticking bomb” scenario. I am not now talking about the routine use of torture in interrogation of suspects or the humiliating misuse of sexual taunting that infamously occurred at Abu Ghraib. I am talking about that rare situation described by former President Clinton in an interview with National Public Radio:

“You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that’s the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or waterboarding him or otherwise working him over.”

He said Congress should draw a narrow statute “which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court.” The president would have to “take personal responsibility” for authorizing torture in such an extreme situation. Sen. John McCain has also said that as president he would take responsibility for authorizing torture in that “one in a million” situation.

Although I am personally opposed to the use of torture, I have no doubt that any president–indeed any leader of a democratic nation–would in fact authorize some forms of torture against a captured terrorist if he believed that this was the only way of securing information necessary to prevent an imminent mass casualty attack. The only dispute is whether he would do so openly with accountability or secretly with deniability. The former seems more consistent with democratic theory, the latter with typical political hypocrisy.

There are some who claim that torture is a nonissue because it never works–it only produces false information. This is simply not true, as evidenced by the many decent members of the French Resistance who, under Nazi torture, disclosed the locations of their closest friends and relatives.

The kind of torture that President Clinton was talking about is not designed to secure confessions of past crimes, but rather to obtain real time, actionable intelligence deemed necessary to prevent an act of mass casualty terrorism. The question put to the captured terrorist is not “Did you do it?” Instead, the suspect is asked to disclose self-proving information, such as the location of the bomber.

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This brings us to waterboarding. Michael Mukasey, whose confirmation as attorney general now seems assured, is absolutely correct, as a matter of constitutional law, that the issue of “waterboarding” cannot be decided in the abstract. Under prevailing precedents–some of which I disagree with–the court must examine the nature of the governmental interest at stake, and the degree to which the government actions at issue shock the conscience, and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process.

The members of the judiciary committee who voted against Judge Mukasey, because of his unwillingness to support an absolute prohibition on waterboarding and all other forms of torture, should be asked the direct question: Would you authorize the use of waterboarding, or other non-lethal forms of torture, if you believed that it was the only possible way of saving the lives of hundreds of Americans in a situation of the kind faced by Israeli authorities on the eve of Yom Kippur? Would you want your president to authorize extraordinary means of interrogation in such a situation? If so, what means? If not, would you be prepared to accept responsibility for the preventable deaths of hundreds of Americans?

Listen, you can forget Iraq as being a issue for the 2008 Presidential election.  This election will be decided on the issue of terrorism, national security and to a lesser degree, taxes. Not one of the Democrat rivals have an advantage on those issues and these are the issues which make Rudy Giuliani a most formidable candidate.

The leftwing nutcases would have us never lay a hand on a terrorist.  No matter what.  Say we have intelligence that a nuke is about to go off and have one of the conspirators in custody.  He won’t say a word and we know its about to blow.  Yes, sounds like a episode of 24 but no one should say it could NEVER happen.  The left would not want the guy touched because of the “we will become as bad as they are” argument to which I call BULLS&*T.  Add in the fact that their loved one is smack dab in ground zero and you will get a little different answer I believe.

Under no circumstances should waterboarding be used for any run of the mill reason.  But there are definitely scenarios where that technique should be used.  It is ignorant and foolhardy for this Congress to try and tie our hands behind our back by proclaiming it illegal instead of looking at the “worst case” scenarios and THEN writing laws.  You cannot assume that this “worst case” event will never happen. 

9/11 should have taught us all this.

Curt

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