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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Words Have Meaning Rick

In a post today, Rick Moran at Rightwing Nuthouse voices disagreement with a post by John Hinderaker of Powerline asserting that waterboarding does not meet the legal definition of torture. Rick does so with the same bald assertions that the entire far left is using - in essence, "waterboarding meets the legal definition of torture because I say it does." Rick also goes one further. He maintains that any reference to the fact that waterboarding is done on our own soldiers as part of SERE training is a strawman that should be ignored. Rick has completely lost the plot on this.

To his credit, Rick begins his argument by referencing both the U.S. law on torture and that contained within the U.N. Convention Against Torture. Both define torture using similar wording - as "SEVERE pain or suffering" be it physical or emotional (emphasis added). Unfortunately, after pointing to the law, Rick simply slaps a bald and conclusory label of "torture" on waterboarding. It is not the stuff of intellectual rigor.

My argument with Rick in this post is not because he sees waterboarding as torture in the philosophical sense. Certainly waterboarding involves physical coercion, though at a low level, and physical coercion is the jumping off point for what we commonly call torture. I think his opinion misguided but not wholly unreasonable. (Update: See this post at Big Lizards for one of the more cogent arguments on that point.) That said, for the purposes of this post, the context at issue is wholly a legal one with tremendous consequence at stake for our nation.

Rick, just like Andrew Sullivan with whom he credits having altered his views on waterboarding - is jumping to a conclusion with no analytical underpinnings and then refusing to admit that any reasonable person looking at the legal definition of "torture" could arrive at a different conclusion. There is not a shred of intellectual honesty to this. Its the fanatical emotionalism of the left, where reality is simply whatever they want it to be and there is no room for principled disagreement.

The bottom line is that when words are put in law, each and every word must be given its plain meaning. If Congress or the UN wanted to provide a very limited definition of the word "torture," then they would have dropped the word "severe" from the definition. Indeed, they could have easily refined the definition of torture by making it unlawful to use "physical coercion" designed to solicit information or perhaps "physical coercion that could reasonably be expected to cause any discomfort." Then there really would be a bright line that the use of waterboarding has crossed. And, in fact, that is the way Rick and everyone on the left is portraying this. They are pretending the word "severe" is meaningless.

The word "severe," as it modifies pain and suffering, must be given a plain and reasonable meaning and that meaning must be satisfied before an act can be called "torture" within the contemplation of the law. That said, lets do a short intellectual exercise to get us to a reasonable interpretation of the word "severe." As I said in a post below:

Putting aside the conclusory labels of the far left for a moment, and before delving into the legalese, let's apply some common sense to arrive at a working definition of [the word "severe" as it is used in the definition of the word,] "torture." Its much harder than it seems as you move away from techniques that are obviously torture. Let's start with the obvious ones. The al Qaeda field manual for torture, liberated by U.S. troops in an April 2007 raid on an al Qaeda safe house / torture chamber, provides some examples along with helpful illustrations. Here are the first two of those illustrations.



Here is a photo of the back of one man found in the al Qaeda safe house who had been subject to a few of these methods:



That is evidence of actual torture.

There are many more methods of interrogation / punishment listed - and illustrated -in the book. They include electrocution, breaking of limbs, flogging, plucking out of eyes, burning with a blow torch or hot iron, etc.

We know intuitively that each one of these methods named above is actual "torture." Why? What are the common threads?

1. All of the techniques described above are meant to cause extremes of pain.

2. Each will result in serious and likely permanent injury.

3. The torture will cause suffering lasting long beyond the actual application of the torture.

4. The vast majority of these techniques run a real risk of being fatal.

So when we look at the pain and suffering caused by incontestable acts of torture, we can define the word "severe" in reference to the conditions above. But what happens when you start to take away one or more of these conditions? Moreover, what happens when you take away ALL FOUR of the conditions. If you do that, then do you drop below the legal threshold for "torture" because the pain or suffering caused is not "severe?" If you answer no, then how do you provide a bright line test for the word "severe" that stays true to its plain meaning?

Update: One person who answered "no" to the above question and who has attempted to redefine "torture" is Rick's mentor on this, excitable Andy Sullivan. It appears in the Daily Dish that Andy would rework the word "severe" so as to create a wholly subjective, ends-based test. According to Andy, "torture" should be defined as "to subject captives to such levels of physical or mental pain or suffering that they have reached the limit of their ability to withhold information in the face of psychological and physical hardship." So "severe" would then mean that if interrogators actually get a terrorist to start talking by using any technique that could remotely be cast as having caused any modicum of pain or suffering, then it becomes illegal "torture" as soon as the terrorist begins to talk. The prima facie proof of torture is the information solicited, irrespective of the severity of the technique used. Andy certainly makes malleable beyond recognition the word "severe." And it would essentially end the ability of our CIA interrogators to . . . well, interrogate prisoners. This bit of sophistry doesn't even come close to making the "sorry but nice try" category.

The OLC attorneys, when they did their legal analysis on the question of whether waterboarding constituted torture, essentially followed the analysis we just used in the intellectual exercise above. They used plain language definitions of the words and existing precedent. The analysis done in Bybee was that waterboarding causes no physical pain but rather causes panic lasting no more than twenty to forty seconds. It causes no lasting suffering, with the effects subsiding immediately after the process is halted. While waterboarding causes the sensation of drowning, there is no risk whatsoever of that occurring. Further, the terrorists were monitored at all times for signs of medical distress. Thus, waterboarding, while coercive, did not rise to the level of "torture" as defined at law or in treaty. I concur.

As to Rick's "strawman," Rick argues that the fact that the military uses waterboarding on our servicemen as a part of SERE training is meaningless for a plethora of reasons, all of which roughly boil down to the fact that SERE training is voluntary and can be stopped at anytime by the serviceman. Fair enough - and indeed, I concur that our use of waterboarding in SERE has little probative value, standing alone, in assessing whether waterboarding is torture under the law when used on high value terrorists. But that alone does not make the fact that our military uses waterboarding as part of its training a strawman. What the experience gleaned from SERE shows - and the reason it was relied upon in the Bybee memo (see pg. 6 of the memo) - was not to establish the legality of waterboarding, but rather to establish that it could be done with an assurance of safety, without any long term effect, and indeed, with the effects of waterboarding ending immediately after the procedure was halted. All of that was key in concluding that waterboarding did not rise to the level of causing "severe . . . pain or suffering."

Having read the memos in question and the law, I do not think waterboarding legally meets the definition of "torture" in law or in treaty. At a minimum, the OLC attorneys presented a colorable legal argument in their memos.

The bottom line is, as I noted earlier, that words have meaning. When particular words are used in a law, those words must each be given fair weight. They can't be wished away or ignored on emotional whim. The OLC spent over one hundred pages examining each and every word in law and treaty to arrive at a reasonable legal opinion on waterboarding. It can be disagreed with, but if it is reasonable, it cannot under any set of circumstances be considered criminal.

The far left, with Rick's very grudging acceptance, are ready to let loose the dogs of war on the Bush Administration and criminalize what amounts to a policy difference. If we are now criminalizing policy difference and seeking retribution by destroying the careers and lives of OLC attorneys, then we are on a downhill slide of far more import to the fabric of this nation then our current economic woes. At the very minimum, we have likely gutted our intelligence capability for far into the future. What attorney will now give an honest and fair guidance to the CIA on any controversial act they are considering? At any rate, Rick, you have acted the part of a very useful idiot on this issue.

Update: Dafyyd ab Hugh at Big Lizards has an exceptional post that I linked in an update above but which I want to be sure to highlight. His argument on this issue comes at it from the standpoint of how the left is attempt to redefine the common meaning of words. It truly is, as Dafyyd points out, Orwellian.

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