Imagine that U.S. forces capture Osama bin Laden or a high-level lieutenant in Pakistan next month and hand him over to the CIA, amid intelligence reports that a massive new Qaeda attack on America may be imminent.Is there an option number 6?--whether waterboarding is torture depends on the duration and circumstances.
Should it be illegal for CIA interrogators to try to scare the man into talking by yelling at him? By threatening to slap him? By pretending to be from Egypt's brutal intelligence service? What about turning up the air conditioner to make him uncomfortably cold? Or denying him hot food until he talks, while giving him all the cold food he can eat?
These methods would all apparently be illegal under a rider that the House-Senate conference committee added to the annual intelligence authorization bill. It would bar the CIA from using any interrogation practice not authorized in the Army field manual's rules for military interrogators. This would mean prohibiting almost all forms of coercive interrogation, including many potentially effective techniques that come nowhere near torture and are now clearly legal.
We've come a long way since September 2002, when Nancy Pelosi, then a House Intelligence Committee member and now the speaker, listened without a peep of protest while being briefed about the CIA's use of waterboarding and other harsh interrogation methods on Qaeda leaders.
Now almost all Democrats (and some Republicans) denounce waterboarding as illegal torture. They are probably right -- although you can bet that after the next 9/11 they will backtrack faster than you can say "unprincipled."
The mostly Democratic sponsors of the proposed legislation unpersuasively suggest that it is necessary to prevent torture. They also hide behind the fantasy that coercion never leads to good information. But there is substantial (if anecdotal) evidence that in some cases, at least, coercive interrogation methods far short of torture may well extract information that could save lives. . .
Consider former CIA interrogator John Kiriakou's astonishing account in interviews aired by ABC News on December 10 and published in the next day's Washington Post.
Captured Qaeda lieutenant Abu Zubaydah successfully resisted various high-pressure interrogation tactics for weeks in 2002. Then the CIA waterboarded him. He broke after about 35 seconds, and soon was sharing information that, Kiriakou claimed, may have disrupted dozens of attacks and saved many lives.
But as Kiriakou added, the waterboarding also probably amounted to torture. So unless we choose to disregard Kiriakou's account, we have five choices in cases such as this: 1) We should evade the law by pretending that this was not torture, as Bush has done; 2) We should make torture legal in such cases; 3) We should imprison the interrogators (or the superiors who gave them orders) for crimes, on the ground that they should have stood by and waited for the possibly preventable mass-murder attacks that they expected; 4) We should imprison them for crimes even if we think they did the right thing; 5) The president should pardon them.
I would choose Option 5. But the question now before Congress is much, much easier: Should it be illegal for CIA interrogators even to threaten the likes of Zubaydah with waterboarding, or with any unpleasantness at all?
Iowa_John in comments:
I got waterboarded in the SERE course [NOfP note: the U.S. military's Survival, Evasion, Resistance and Escape training]. Devastatingly effective stuff, yet left no permanent damage, physical or psychological. I can see the argument for calling waterboarding torture, but I disagree.MORE & MORE:
Mark Bowden in The Point:
At the time of his capture in 2002, just six months after the Sept. 11 attacks, there was strong reason to believe [Abu] Zubaydah knew virtually the entire organizational structure and agenda of al-Qaeda around the world. He was supervising ongoing plots to kill hundreds if not thousands of people. He was, for obvious reasons, disinclined to share this knowledge. Subjected briefly to waterboarding - less than a minute, according to published reports - he became cooperative and provided information that, according to the government, resulted in preventing planned attacks and capturing other key al-Qaeda leaders.(via Instapundit, Conservative Grapevine)
In the six years that have passed since the Manhattan towers collapsed, we have gained (partly through the interrogation of men like Zubaydah) a much clearer understanding of al-Qaeda and the threat it poses. While the chance of further murderous attacks is always with us, it is fair to say few of us feel the same measure of alarm we did then. The diminishment of this threat is at least in part due to the heroic efforts of the CIA, the military, and allies around the world in targeting terrorist cells.
In the process, the menace of Zubaydah himself has deflated. Today, he is just another little man in a orange jumpsuit at Guantánamo. Our national concern has shifted from stopping him to figuring out what to do with him.
And to second-guessing what was done to him. Waterboarding is a process by which a detainee is strapped down and forced to ingest and inhale water until he experiences the terror of drowning. It is not torture in the traditional sense of inflicting pain; it inflicts fear, intense, visceral fear, without doing physical harm. It is a method calculated to straddle the definitions of coercion and torture, and as such merely proves that both methods inhabit the same slippery continuum. There is a difference between gouging out a man's eyes and keeping him awake, and waterboarding falls somewhere in between.
In the unlikely event that Zubaydah knew nothing of value and that every bit of information he divulged was false, it was still reasonable to assume in 2002 that this was not the case. If his interrogators were able to stop one terror attack by waterboarding him, even if they violated international agreements and our national conscience, it was justified. All nations have laws against killing, but all recognize self-defense as a legitimate excuse. I think the waterboarding in this case is directly analogous, except that Zubaydah himself, although he richly deserves it, was neither killed nor permanently harmed.