Moral Confusion At The Rightwing Nuthouse

Rick Moran at Rightwing Nuthouse does wonderfully when blogging on the Republican Party and political issues. Indeed I have learned a great deal through reading his insightful posts on political issues and I include him in my daily reads. But that said, when Rick goes off the reservation, as has been known to happen in the past and as he does now on the issue of torture, he goes off in a rocket.

His most recent was a post arguing the moral parameters of "torture" in light of the our use of waterboarding. Rick is an absolutist on the issue. Thus for him, there is that rare degree of moral clarity that we who are not of the far left are rarely if ever are able to attain. Rick is emotionally tied to the notion that no reasonable person reading the law could conclude that waterboarding fails to meet the legal standard for "torture." He never articulates why the OLC attorneys got it not merely wrong, but criminally wrong. But I am not going to rehash that issue. I posted on it here.

I also went through the legal, moral and prudential issues surrounding waterboarding in the post below. Rick went through them also in his post here, using arguments that ranged from just plain wrong to arguments that were insipid. Since one of the Watcher's Council members thought enough of Rick's post to nominate it this week, I can't help myself from pointing out some of the inconsistencies.

Rick's primary argument on the morality of waterboarding is that waterboarding is illegal, that we have a moral imperative to follow the law, and therefore, waterboarding is immoral. Somehow I don't think that Henry David Thoreau would agree with Rick's logic. Rick conflates morality and the law - but the two are hardly synonomous. To paraphrase Thoreau from his seminal essay, Civil Disobedience, morality is proactive - a truly moral person will attempt to act in conformance with his beliefs at all times, irrespective of laws or consequence. On the other hand, laws are nothing more than those rules we set to order society. Though it is beyond argument that many laws arise out of our collective morality, those laws in no way enshrine a moral code. It is quite possible to act morally and transgress the law just as it is possible to act immorally and stay within its letter.

For example, the law does not create an affirmative duty on the part of citizens to help others in need. In 1964, Kitty Genovese was raped and murdered on a NYC street - an act witnessed by at least twelve people, none of whom intervened. Did they act morally?

Suppose I perceive an imminent threat of serious injury or death to my daughter from her boyfriend. I kill him. If I did so when he was in the midst of attacking her, the law says that what I did was legal. But if I still believed the threat real and attacked him long before he got to my daughter's location, such a defense becomes tenuous at best. My moral imperative did not change, what changed was merely what the law accepts as a legal defense.

How about Mohamed Ali, the great boxer. He broke the law by refusing to be drafted into the military during the Vietnam War. He did so on grounds of his moral belief that the war was wrong and he willing accepted his punishment for breaking the law. So did he act immorally.

The long and short is that Rick's argument conflating the legal question of torture with the moral one is not a coherent or viable argument. But Rick isn't done. He has a few other similarly flawed arguments. According to Rick, we should never use waterboarding because

. . . it is an absolute impossibility to know that “using waterboarding against a known terrorist may well elicit information” that could prevent an attack. That is sophistry on a stick.

Whoa. Where did that bit of unrealistic absolutism come from? If we take Rick's logic to its natural conclusion, we could never act unless we were absolutely convinced of all particulars in the first place. If that level of surety is required, then we can close down all intelligence operations. And indeed, if we tried to live our lives with that degree of surety, we would be never be able to leave the house.

In the real world, we of necessity have to act on probabilities based on our assessment of all the information reasonably known at the time. That is the way intelligence professionals operate. Its the way our jury system operates. Indeed, that is the way most everything in this world operates. Rick's argument is utopian nonsense.

Another argument Rick makes concerns the "ticking time bomb theory." Many who justify the use of waterboarding do so on the premise that the information it is believed the terrorist possesses is, one, necessary to stop or interdict ongoing plots that may be executed in foreseeable future and, two, lesser methods of interrogation have not worked to get the terrorist to reveal this information. Rick goes off the rails on this proposition, engaging in the bizarre argument that the ticking time bomb scenario is a complete falsehood.

I won't bother to go through Rick's tortured logic on this. There is no need. Try this - reflecting back on what we know today, on September 10, 2001, how would you describe the 9-11 hijackers? Were they a ticking time bomb? In retrospect they clearly were. And the CIA knew it, they just did not know the particulars. Indeed, the CIA Director briefed Bush on an imminent attack approximately two months before 9-11, if I recall correctly. Given that scenario, if we had a high level al Qaeda agent then in custody who might have had information of the attacks, using Rick's logic, we still would have had no justification to use coercive interrogation on him because we did not know with absolute surety that an attack would occur. That's ridiculous.

But Rick goes even farther afield with the claim that not only is the "ticking time bomb" scenario a false premise, but there is no evidence of such a scenario having occurred in all of recorded history. Let's assume arguendo that Rick is correct, what Rick neglects to reflect upon is that we live in an age vastly different than all of recorded history.

Now, for the first time in history, a single person or a small group with access to nuclear or biological materials can cause the death of thousands or millions in a single act. A single individual intentionally infected with small pox could enter the U.S. and give rise to a pandemic. We know that al Qaeda has tried to gain access to such material and that they have experimented with chemical weapons. They have sought materials for a so called "dirty bomb" used to spread a highly radioactive dust over a large area, rendering a large section of a city uninhabitable or shutting down a port for years. And that doesn't even begin to consider all of the lesser mayhem that terrorists can cause with the inventive use of whatever is at hand - i.e., planes, etc.

Lastly, according to Rick, there was no need to use waterboarding because

Professional interrogators are masters of putting psychological pressure on a subject without coercive or “enhanced” interrogation techniques."

This brings up an interesting side issue regarding the law. Rick refers to a 2004 article in City Journal that discusses how military interrogators overcame the refusal of the vast majority of al Qaeda detainees to provide information. Its a great article. Many of the techniques found effective, though far below the threshold of waterboarding, none the less mimic some of the "enhanced interrogation techniques" used by the CIA, including laying on of hands, the use of stress positions, etc.

With all of that in mind, if you are going to redefine "torture" to encompass things that cause no injury and no physical pain and that do not involve anything but momentary suffering that ends when you stop the interrogation technique, then where is the clear line that we cannot cross? If, as Rick would have us do, we are now defining down "torture" to read the brief period of panic that waterboarding causes to be tantamount to "severe [mental] pain and suffering," then what in the legal definition of "torture" is there to tell me that "psychological pressure" over a period of days and weeks is not tantamount to "severe [mental] pain and suffering." Or what is there to tell me that the mere fact of confinement without knowing when I might be released does not rise to this new level of "severe [mental] pain and suffering." Inquiring minds want to know.

At any rate, Rick's arguments on the moral parameters of torture as they apply to waterboarding are absolutist and just off the rails. The jury is still out, of course, on the prudential issues - i.e., whether waterboarding as used gave us reliable information that could not timely be gotten otherwise. If you are keeping an open mind on this, then those are the bits of information you are waiting on. If you are like Rick, your mind was made up long ago on the basis of emotion. No facts are necessary on this issue.

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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.

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Watcher's Council Posts

First up, we have a vacancy on the Watcher's Council. If you would like to join, please visit the Watcher's site. You will find a link to instructions on how to apply on the right sidebar of the site.

Each week, the members of the Watcher's Council nominate one of their own posts and a second from outside the Council for consideration by other council members in a contest for best post. The Watcher publishes the results each Friday morning.

Terry Trippany plays the role of Watcher of Weasels. Do visit the Watcher's site for his theme of the week - this week being the waterboarding memos and how the left has suddenly found that they were illegal acts from inception.

This week's nominations are:
_______________________________________________________

Council Submissions

Bookworm Room - Torture, Real and Imagined


The Razor - Why An Alcoholic Supports the Legalization of Illicit Drugs


The Glittering Eye - Disease Vectors


Right Truth - The next 1,360 days


The Colossus of Rhodey - Did the NY Times bury an “inconvenient” torture memo story? And a torture question …


Wolf Howling - Words Have Meaning Rick


Soccer Dad - It’s easy being green. Not.


The Provocateur - Is Commercial Real Estate Next?


Joshuapundit - Exposing The Palestinian’s


Phony ‘Demographics’ Threat Against Israel


Non-Council Submissions


Submitted By: Bookworm Room - The Washington Times - Barack’s in the basement


Submitted By: The Razor - NY Post - 100 Days, 100 Mistakes for Barack Obama


Submitted By: The Glittering Eye - Right Wing Nut House - The Moral Parameters of Torture


Submitted By: Right Truth - The Onion - Millions and Millions Dead


Submitted By: The Colossus of Rhodey - The New Republic - Regift, Please!


Submitted By: Wolf Howling - Michael Sheurer @ WaPo - Say Its Osama. What If He Won’t Talk?


Submitted By: Soccer Dad - Legal Insurrection - Which city would you sacrifice?


Submitted By: The Provocateur - The New Ledger - What Will the Stress Tests Mean


Submitted By: Joshuapundit - Cheat Seeking Missiles - John And Teresa And Conflict

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More Green Blasphemy

Retired NASA Scientist Dr. Leonard Weinstein, a 35 year empolyee of NASA's Langley Research Center, and now Senior Research Fellow at the National Institute of Aerospace, penned an article on April 23 reviewing the current state of scientific knowledge and the theory of anthropogenic global warming (AGW). This from his article:

The final question that arises is what prediction has the AGW made that has been demonstrated, and that strongly supports the theory. It appears that there is NO real supporting evidence and much disagreeing evidence for the AGW theory as proposed. That is not to say there is no effect from Human activity. Clearly human pollution (not greenhouse gases) is a problem. There is also almost surely some contribution to the present temperature from the increase in CO2 and CH4, but it seems to be small and not a driver of future climate. Any reasonable scientific analysis must conclude the basic theory wrong.

(H/T Climate Depot)

Read the entire paper. This comes as solar activity has gone incredibly quiet and our earth has cooled over the past seven years - despite all computer models forecasting the opposite. Today we learn that Australia has experienced its coldest day ever recorded. A recent study in the North Pole of previously untested areas found the ice twic