The Ticking Time Bomb & Coerecive Interrogation

Soccer Dad sent me a link to an article near a decade old written Stephen Flatow in the NYT. The article illustrates a "ticking time bomb" scenario - a scenario when our intelligence agencies have reason to believe that a terrorist in our custody has information that could stop a terrorist plot slated to occur in the near or, at least, foreseeable future. In a post below, I address Rick Moran's argument that such a scenario is purely the stuff of fiction. Here is a heart breaking real world example of a ticking time bomb scenario from the pages of the NYT:

On Aug. 21, 1995, Suffiyan Jabarin, a 26-year-old Palestinian member of the terrorist organization Hamas, blew himself up on a bus in the heart of Jerusalem, taking the lives of four people -- three Israelis and an American -- with him.

I followed the story of the bombing on Bus 26 quite closely; my 20-year-old daughter, Alisa, had been killed by an Islamic Jihad suicide bomber on a bus in Israel four months earlier. A few days after the Aug. 21 attack, Israeli and American newspapers reported that the man who masterminded it, Abdel Nasser Issa, had been in Israeli custody two days before the bombing.

Israeli authorities had arrested Mr. Issa on suspicion of terrorist activity and questioned him the same way they would question anyone else: posing questions and waiting for answers. Mr. Issa revealed nothing unusual to his interviewers. It was only after the bus bombing that Karmi Gilon, then chief of Israel's secret service, the Shin Bet, authorized the use of ''moderate physical force.''

The next morning, Mr. Issa, who had not been told of the bombing of Bus 26 the day before, told the Israelis about his plan for that attack. He also provided information that led to the arrests of 37 Hamas militants who had been planning additional bombings.

Mr. Gilon told reporters that the blood of the next victims of terrorism would have been on his hands if physical pressure had not been used in the interrogation of Mr. Issa. And Yitzhak Rabin, then Prime Minister of Israel, said that had the Shin Bet applied such pressure earlier, the attack on Bus 26 might have been prevented.

In the last two years, the Shin Bet has averted 90 planned terrorist attacks. Yet the United Nations Committee Against Torture recently condemned Israel's methods of questioning suspected terrorists as torture, even though Israel limits and regulates the use of force and allows detainees to petition the highest court to stop possibly illegal measures. . . .

I have always cherished America's unparalleled standards of individual and human rights. But the Middle East is different from the United States. Israel lives in what Prime Minister Benjamin Netanyahu has called ''a very tough neighborhood.'' Indeed, more than 200 Israelis have been killed in terrorist attacks during the past four years.

The most important obligation of any country is protecting the lives of its citizens. To hold individual human rights as an absolute rule when occasional exceptions to that rule can prevent the random murder of civilians seems to me morally unjustifiable. Moreover, Israel's use of limited physical pressure during interrogations, a practice that is regulated and regularly reviewed, cannot be compared with the uncontrolled torture of suspects employed by some of Israel's neighbors, like Syria. . . .

I cannot consider the individual rights of a Palestinian detainee in an Israeli jail as a separate issue from protecting the lives of bus passengers. Nor do I have the luxury of examining this question from an abstract moral perspective.

If applying limited physical pressure to a suspected terrorist can spare even one parent the pain of losing a son or a daughter, I am all for it. In the meantime, I pray that the conditions that give rise to the need for such methods will speedily come to an end.

Read the entire article. It is of course depressing to know that the decision to conduct a coercive interrogation did not occur in the above case until after people died. Still, it would seem that the information gleaned did stop other similar bombings.

The tough neighborhood Mr. Flatow describes came to our shores on 9-11. There can be no doubt that it will come again given the opportunity. This also ties in to my post here, examining the moral issues that surround coercive interrogation tactics. Talk of protecting lives in the abstract as a moral imperative of the President is one thing. Hearing it through the pen of a man who lost his daughter to terrorism gives the issue the solidity it deserves.

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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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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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