Wednesday, November 7, 2007

Rudy, Toughness, and Torture

A friend of mine sent me the link to this Wall Street Journal Op-Ed by ostensibly-liberal law professor Alan Dershowitz. Dershowitz decries what he considers to be a "pacifistic stance" among the Democrats, and he argues that Rudy Giuliani appears to be doing well in the polls because "the post- 9/11 Rudy conveys a sense of toughness, of no-nonsense defense of America."

Well, maybe. But to me the post-9/11 Rudy conveys something else: the puffed chest and macho posturing of a small, fearful man. I don't think his attitude conveys strength and toughness; I think it conveys fear, weakness, and paranoia -- the same sort of fear that leads an Amtrak employee to become overwrought about an elderly Japanese photographer. Rudy's message: be afraid all the time. Sacrifice our honor and our most important values.

When asked whether waterboarding was torture, Rudy said it was, the way it was described by the "liberal media," but he seemed to leave open the option that there could be some forms of waterboarding that wouldn't count. Well, Jonathan Adler at Volokh links to this article, an article written by somebody who was an instructor at SERE school, a man who has undergone waterboarding and performed it on American soldiers in training. A real tough guy, one who doesn't need to engage in Rudy-style macho-posturing to prove his manhood. He says, simply, "when performed with even moderate intensity over an extended time on an unsuspecting prisoner – it is torture, without doubt." This article has been cited extensively in the blogosphere, so you may have seen it already, but this is a passage that I think every American ought to read:

We live at a time where Americans, completely uninformed by an incurious media and enthralled by vengeance-based fantasy television shows like “24”, are actually cheering and encouraging such torture as justifiable revenge for the September 11 attacks. Having been a rescuer in one of those incidents and personally affected by both attacks, I am bewildered at how casually we have thrown off the mantle of world-leader in justice and honor. Who we have become? Because at this juncture, after Abu Ghraieb and other undignified exposed incidents of murder and torture, we appear to have become no better than our opponents.

With regards to the waterboard, I want to set the record straight so the apologists can finally embrace the fact that they condone and encourage torture.

History’s Lessons Ignored

Before arriving for my assignment at SERE, I traveled to Cambodia to visit the torture camps of the Khmer Rouge. The country had just opened for tourism and the effect of the genocide was still heavy in the air. I wanted to know how real torturers and terror camp guards would behave and learn how to resist them from survivors of such horrors. I had previously visited the Nazi death camps Dachau and Bergen-Belsen. I had met and interviewed survivors of Buchenwald, Auschwitz and Magdeburg when I visited Yad Vashem in Jerusalem. However, it was in the S-21 death camp known as Tuol Sleng, in downtown Phnom Penh, where I found a perfectly intact inclined waterboard. Next to it was the painting on how it was used. It was cruder than ours mainly because they used metal shackles to strap the victim down, and a tin flower pot sprinkler to regulate the water flow rate, but it was the same device I would be subjected to a few weeks later.

On a Mekong River trip, I met a 60-year-old man, happy to be alive and a cheerful travel companion, who survived the genocide and torture … he spoke openly about it and gave me a valuable lesson: “If you want to survive, you must learn that ‘walking through a low door means you have to be able to bow.’” He told his interrogators everything they wanted to know including the truth. They rarely stopped. In torture, he confessed to being a hermaphrodite, a CIA spy, a Buddhist Monk, a Catholic Bishop and the son of the king of Cambodia. He was actually just a school teacher whose crime was that he once spoke French. He remembered “the Barrel” version of waterboarding quite well. Head first until the water filled the lungs, then you talk.


Is that what we wish to become?

Now, it does seem that waterboarding has not been used particularly often -- at least if recent reports are to be believed. This ABC News report claims that only three people have been waterboarded by the CIA, and it has not been used at all since 2003. As Julian Sanchez, observed, you can't have it both ways: you can't claim that the technique is vital to national security when it hasn't been used at all since 2003. The ABC report indicates that, after being waterboarded, Khalid Sheik Mohammed confessed. Of course, we know we can make people confess to pretty much anything if we torture them. He probably is guilty of at least some of the things to which he confessed, but the hard truth is that the fact that he confessed under torture tells us nothing.

And because of his treatment, it is now virtually impossible to try him in a real court. If we had treated him in a humane manner, we could have tried him before a real court, with real lawyers, a real judge, and a real lawyer. And the result would have been real justice. Would some have refused to believe he had gotten a fair trial? Sure. But for those who could be swayed, giving him a fair trial would have been an important symbolic act.

But what about the favorite example from those who wish to justify torture: the ticking time bomb scenario? Professor Dershowitz discusses this situation:

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."


First of all, it never happens. You never know enough to know there's a ticking time bomb and that you have the person who knows where it is. If you know for sure that it's the guy and you know about the bomb, you probably know all sorts of other things which are likely to lead you to the bomb. So why spend all this time discussing a scenario that never happens?

Second, the ticking time bomb is the scenario in which torture is least likely to work. If the terrorist can ever hold out, or construct a convincing lie, this is the time he will do it. Because he knows that he just has to last a limited period of time, and then the bomb will go off.

I am curious to know how far people are willing to take this. Suppose, for example, that the terrorist has a child. We grab Terrorist Mastermind at home with his child. And somebody gets the bright idea of making the Mastermind watch as we crush his eleven-year-old son's testicles -- something John Yoo claims the President has the inherent power to do. So do we do it? Just how far do we go?

Let me make a somewhat different argument. If there were an imminent attack on America, and you could stop it at the cost of your own life, would you do it? I don't know for a fact that I would sacrifice my own life, but I certainly hope I would. And I assume our CIA and FBI agents, and members of our military would make the same choice. Likewise, I hope that they would sacrifice their freedom in order to prevent a terrorist attack on the United States. So here's my proposal: if the ticking time bomb ever happens, the CIA or FBI agents or whoever can torture the mastermind and then, after the attack is foiled, turn themselves in, plead guilty, and accept punishment. If your answer is that they are not really willing to do that, well, I suspect it is because they don't believe that torture is really necessary. And if a President believes it is really necessary, well, let him (or her) authorize it, and the resign from office and accept the legal consequences.

I think that we can defend our country from terrorists without throwing away our honor. We don't need to torture people, and we sacrifice something about what makes America great when we do so. Yes, be tough on terror. But do so in a manner that is consistent with American values.

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