The Moral, Legal & Prudential Considerations Surrounding Waterboarding

The issues of the legality and morality of waterboarding are still very much at issue. The far left wants to pretend that there are no moral considerations at work in the issue beyond the flat statement that "we do not torture." Further, they label waterboarding torture without bothering to analyzing the legal definition of "torture" in law and our treaty obligation. It would seem that waterboarding is torture because they want it to be so.

There is an important debate to be had on coercive interrogation of al Qaeda and similar terrorists whom we capture. We have hardly seen the last of al Qaeda and like minded Islamists. The significant asymetric dangers they pose are real and are not going to go away in our lifetimes. We live in an era where, for the first time in history, a handful of people can kill thousands and, potentially, millions in a single act.

Having said that, what follows are how I see the moral, legal and prudential issues surroung waterboarding:

1. What are the legal limits of interrogation that we cannot go beyond, and where does waterboarding come under those limits?

As I posted at length here, based on my read of the applicable law, a reasonable attorney could conclude that waterboarding does not rise to the level of "severe pain and suffering." This is not to say that another attorney could not make a colorable argument to the contrary, but my own opinion is that waterboarding is legal.

2. What are the moral and prudential considerations surrounding interrogation generally and waterboarding specifically?

We are a nation animated by the Judeo-Christian ethic - Obama's claims to the contrary notwithstanding. At the very heart of that ethic is the moral imperative of the Golden Rule - to "do unto others as you would have them do unto you." That is essentially the hub from which the spokes of all moral questions in Western Civilization begin. With that in mind, we can look to waterboarding, a coercive measure which causes momentary panic and stress, though it has no long term ill effects. With that in mind, we would not want to be subjected to coercion generally, including waterboarding, and thus to subject others to it is at least morally repugnant.

While waterboarding may be morally repugnant, our President has the moral and legal duty to protect our nation's citizens. It exists, it can't be wished away. If citizens are murdered when the President could have done something to stop it, then he has failed this country, morally and legally. Would that moral failure outweigh the moral repugnance of using waterboarding? This question assumes, of course, that waterboarding in fact works to secure vital information and it is information that could not reasonably be expected to be timely gotten otherwise. In that scenario, the failure to use waterboarding seems clearly the greater moral failing. On one hand our dead Americans, perhaps thousands of them if not more. On the other hand is a prisoner who has been subject to carefully monitored coercion for a matter of seconds and with no ill effect the moment the waterboarding is stopped..

Now I would add that Obama has added an aditional consideration - as have many of those on the left. That is a question of how the "world will view us" if we waterboard the odd al Qaeda high ranking psychopath in an effort to save the lives of U.S. citizens. Obama has framed this as a moral issue, though it is anything but. It is a prudential consideration that stands morality on its head. The very definition of moral courage is to do the morally correct act, irrespective of the situation or what others may think. Indeed, to make the public opinion of Europe a decisive factor in this equation is an act of moral cowardice.

There is a related prudential consideration that the left has ridiculously overemphasized in relation to al Qaeda. We do not engage in coeercive interrogation under the logic that refraining from doing so deprives an enemy holding some of our soldiers or citizens in captivity the justification for harshly interrogating them, ostensibly tit for tat.

That argument falls apart when talking about al Qaeda. Anyone who watched KSM behead Daniel Pearl - or any of the other numerous execution porn videos of al Qaeda - and anyone with knowledge of what was done to the few U.S. soldiers captured by al Qaeda - knows that whether we treat their members with kid gloves or not has zero bearing on how they will treat our own whom they have captured. The same could be said for virtually every war we have ever fought. While this prudential consideration makes logical sense, the reality is that our refusal to engage in such techniques in the past has not stopped any enemy from mistreating our own people whom they have captured. I am not suggesting that we should not still hold true to this consideration, but I am saying that it should not be a definitive consideration.

3. As a prudential matter, does waterboarding work?

That really is the question of the day. If waterboarding has actually proven unreliable, it should be banned simply on that ground without ever having to reach questions of morality and law. Those considerations are moot.

It is unshakable dogma on the left that waterboarding produces unreliable information. As a general historical matter, that has merit. Certainly coercion has been often been used historically specifically to get confessions, etc., with the falsity being meaninless. Further, we know that people under sufficient coercion will often say whatever they think their captors want to hear in order to make the coercion stop, whether it be true or false. That said, the CIA was trying to garner information, as I recall it explained, using repetition and, when possible, multiple points of reference so that they could have some idea whether what was being spouted was unreliable. Ultimately, the proof is in the pudding. Was the information gleaned reliable or not?

Certainly according to our prior spymasters, Tenet Hayden and McConnell, waterboarding not only worked, but the information derived was of critical importance to capturing other terrorists and breaking up plots in progress to kill more massive numbers of innocent American civilians. Dick Cheney has sought the release of two documents he alleges will provide proof of the effectiveness of waterboarding - a request Obama is slowrolling through procedures at present. John Kiriakou, a CIA agent who took part in the Zabaydah interrogation, has gone public on its success.

Taking issue with John Kiriakou is Ali Soufan, formerly with the FBI. According to Mr. Soufan, who was only involved with Abu Zabaydah, waterboarding was unnecessary. Further, he stated in a NYT Op-Ed:

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.

This gives us a clear conflict between the people in position to evaluate the effectiveness of waterboarding, at least in the case of Abu Zubadayah. It says nothing about the other two that were subject to waterboarding. No matter, as the only way to evaluate the information gleaned as a result of the waterboarding is to get the information out into the public realm. Unless Obama squelchs Cheney's requests to declassify documents for political reasons, we will hopefully learn enough in the near future to evaluate this issue.

4. Are non-coercive measures of interrogation equally or more effective than waterboarding?

This dovetails with Question 3. If the answer is yes, then there is no reason to keep waterboarding as a potential, if very sparingly used, method of interrogation. The same people mentioned above are in disagreement on the issue. Even Obama's current DNI, Adm. Blair, himself an avowed opponent of waterboarding, wrote in a memo that waterboarding produced "high value" information. He later added that we might have been able to acquire that information by means other than waterboarding. So this is very much at issue.

Heather MacDonald, in a 2004 article for City Watch, wrote that in response to normal methods of interrogation, 95% of all of the thousands of al Qaeda detainees run through Kandihar refused to cooperate. Given that the majority of al Qaeda members are Wahhabi/Deobandi religious zealots, that comes as no surprise. They found that stress techniques - techniques short of waterboarding but which resembled some of the techniques approved in the OLC memos - did in fact work in the majority of occasions. Of course, waterboarding was never used in the majority of occasions either. Its use was limited to three high value targets who, supposedly, had not responded to any of the other techniques within a reasonable time.

To highlight that last thought, time is a consideration when a person is captured. The longer interrogation is delayed or unsuccessful, the more stale the information becomes and the harder it will be to exploit. Plots against the U.S. may not be interdicted. Operatives aware of a person's capture and what they know may well modify their behavior, location and plans in response.

5. Assuming that waterboarding works and that it does so in cases where non-coercive interrogation methods have not, what limits should be placed on the use of waterboarding?

This is the least troublesome of the questions, given how waterboarding was used by the CIA between 2002 and 2006, when the practice was halted. For all of the thousands of al Qaeda and Taliban prisoners processed and interrogated, waterboarding was used on a grand total of three people. Those three were high level al Qaeda detainees who were not cooperating or who were not believed to be, in significant part, fully cooperating in response to lesser methods of interrogation. Lastly, these three were believed to know information that would significantly enhance our ability to stop al Qaeda plots and attack their organization. The decision to use waterboarding in any particular instance was, if I recall correctly, the responsiblity of the CIA director. There was numerous limits placed on how the waterboarding was to be conducted and medical personnel were present to insure that the practice would be halted if there was any indication of injury or medical emergency. Time has shown no injury to those who were subject to this method of interrogation.

The danger, of course, is that when one green lights something on the edge of moral and legal behavior, that one jumps on to a slippery slope that will lead to unjustified use of waterboarding or to the use of even more harsh techniques. It appears that waterboarding was so sparingly used and with so many safeguards surrounding its use that no slippage occurred.

6. Looking to the OLC attorneys who, in a series of memos, found waterboarding legal in U.S. law and our treaty obligations, should a criminal investigation be conducted?

This is a related question because of where we stand today. Attorneys in the OLC are responsible for giving guidance to our intelligence agencies when asked. Whether you agree or not with the OLC memos on enhanced interrogation, the bottom line is that, when you open a criminal investigation with an eye towards prosecuting or punishing OLC attornies for acts seven years old, you have just insured that our intelligence capabilities will suffer for years, if not decades to come. No attorney in the OLC in his right mind would green light any potentially controversial act in an area of the law that is not crystal clear.

Summary

Waterboarding is near the edge of the legal definition of torture, but a colorable argument was made by the OLC attorneys in 2002 that it does not constitute torture. Morally, it is a repugnant act. But that is not the only moral issue at play. The President has a moral and legal obligation to use all legal methods at his disposal in order to protect the safety of our citizens. How the rest of the world sees us is not a part of the moral calculus and should carry little, if any, weight in the debate. These competing moral imperatives play out, I believe, to mean that the President should retain waterboarding as a tool if it has proven to have gotten us reliable information in a timely fashion where other methods of interrogation had failed. Further, it should be reserved for those few occasions where the CIA director reasonably believes that the individual has information that could be vital to our national security.