The Torture Debate, Continued
Charles Krauthammer
Friday, May 15, 2009

WASHINGTON -- Earlier this month, I wrote a column outlining two exceptions to the no-torture rule: the ticking time bomb scenario and its less extreme variant in which a high-value terrorist refuses to divulge crucial information that could save innocent lives. The column elicited protest and opposition that were, shall we say, spirited.

And occasionally stupid. Dan Froomkin, writing for washingtonpost.com and echoing a common meme among my critics, asserted that "the ticking time bomb scenario only exists in two places: On TV and in the dark fantasies of power-crazed and morally deficient authoritarians." (He later helpfully suggested that my moral deficiencies derived from "watching TV and fantasizing about being Jack Bauer.")

On Oct. 9, 1994, Israeli Cpl. Nachshon Waxman was kidnapped by Palestinian terrorists. The Israelis captured the driver of the car. He was interrogated with methods so brutal that they violated Israel's existing 1987 interrogation guidelines, which themselves were revoked in 1999 by the Israeli Supreme Court as unconscionably harsh. The Israeli prime minister who ordered, as we now say, this enhanced interrogation explained without apology: "If we'd been so careful to follow the ('87) Landau Commission (guidelines), we would never have found out where Waxman was being held."

Who was that prime minister? Yitzhak Rabin, Nobel Peace laureate. (The fact that Waxman died in the rescue raid compounds the tragedy but changes nothing of Rabin's moral calculus.)

That moral calculus is important. Even John McCain says that in ticking time bomb scenarios you "do what you have to do." The no-torture principle is not inviolable. One therefore has to think about what kind of transgressive interrogation might be permissible in the less pristine circumstance of the high-value terrorist who knows about less imminent attacks. (By the way, I've never seen five seconds of "24.")

My column also pointed out the contemptible hypocrisy of House Speaker Nancy Pelosi, who is feigning outrage now about techniques that she knew about and did nothing to stop at the time.

My critics say: So what if Pelosi is a hypocrite? Her behavior doesn't change the truth about torture.

But it does. The fact that Pelosi (and her intelligence aide) and then-House Intelligence Committee Chairman Porter Goss and dozens of other members of Congress knew about the enhanced interrogation and said nothing, and did nothing to cut off the funding, tells us something very important.

Our jurisprudence has the "reasonable man" standard. A jury is asked to consider what a reasonable person would do under certain urgent circumstances.

On the morality of waterboarding and other "torture," Pelosi and other senior and expert members of Congress represented their colleagues, and indeed the entire American people, in rendering the reasonable person verdict. What did they do? They gave tacit approval. In fact, according to Goss, they offered encouragement. Given the existing circumstances, they clearly deemed the interrogations warranted.

Moreover, the circle of approval was wider than that. As Slate's Jacob Weisberg points out, those favoring harsh interrogation at the time included Alan Dershowitz, Mark Bowden and Newsweek's Jonathan Alter. In November 2001, Alter suggested we consider "transferring some suspects to our less squeamish allies" (i.e. those that torture). And, as Weisberg notes, these were just the liberals.

So what happened? The reason Pelosi raised no objection to waterboarding at the time, the reason the American people (who by 2004 knew what was going on) strongly re-elected the man who ordered these interrogations, is not because she and the rest of the American people suffered a years-long moral psychosis from which they have just now awoken. It is because at that time they were aware of the existing conditions -- our blindness to al-Qaeda's plans, the urgency of the threat, the magnitude of the suffering that might be caused by a second 9/11, the likelihood that the interrogation would extract intelligence that President Obama's own director of national intelligence now tells us was indeed "high-value information" -- and concluded that on balance it was a reasonable response to a terrible threat.

And they were right.

You can believe that Pelosi and the whole American public underwent a radical transformation from moral normality to complicity with war criminality back to normality. Or you can believe that their personalities and moral compasses have remained steady throughout the years, but changes in circumstances (threat, knowledge, imminence) alter the moral calculus attached to any interrogation technique.

You don't need a psychiatrist to tell you which of these theories is utterly fantastical.



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Ah ... where to begin? ...

Regarding Cpl. Waxman:

1) If we're going to be treating every kidnapping of an individual as a "ticking time bomb" then we're going to be doing one hell of a lot of torturing.

2) Rabin could not know whether they would have had any success at gaining information from the driver without torture.

3) If Krauthammer wants to use Rabin's Nobel Peace Prize as some sort of measure of his moral stature, then it would be worthwhile to recall with whom he shared that prize: Yasser Arafat. If Mr. Krauthammer wishers to hold Arafat up as a moral giant, he's free to do so but I doubt there's many who would agree - I certainly don't. Ergo, the award of that prize is no indicator of Rabin's moral fiber in this case.

4) Krauthammer tries to defuse the point that Cpl. Waxman was murdered, but his attempt doesn't fly. The whole argument for dispensing with moral qualms in the "ticking time bomb" scenario is that torture is the only effective means of stopping that "ticking time bomb." So it can hardly be irellevant that this instance of torture in fact failed to accomplish its purpose.


Regarding Nancy Pelosi and the other Democratic leaders in congress:

1) I'm not going to defend the fact that they didn't speak up. In my opinion, presented even with what Pelosi agrees she was told (that is the fact that OLC had rendered an opinion that these techniques were legal and their use was being contemplated - albeit possibly not having been employed yet) they should have threatened to take it to the floor if it was not immediately renounced. The claim that they could not speak about what they heard because it was classified is pure 100% bullshit. The supreme court cas of Gravel v. U.S. is precisely on point here - members of congress are completely immune from prosecution for legislative acts and at the very minimum, debate on the floor of the House is a legislative action. Sure, they would have lost clearances and seats on the Intelligence Committee, but that's the political cost of doing the right thing.

2) The fact that they "gave tacit approval" does nothing to change the fact that it's wrong and illegal. All that means is that they're to some degree complicit in the Bush administration's crimes.



Regarding Alan Dershowitz, Mark Bowden and Jonathan Alter: who gives a flying fuck? Last I checked, those asshats were no part of the government.


Finally, regarding this nonsense:

You can believe that Pelosi and the whole American public underwent a radical transformation from moral normality to complicity with war criminality back to normality. Or you can believe that their personalities and moral compasses have remained steady throughout the years, but changes in circumstances (threat, knowledge, imminence) alter the moral calculus attached to any interrogation technique.

He's missing the simple explanation: Those in the Bush administration who did this were and still are war criminals, and those in Congress who failed to stand up to them were and still are cowards.