Thursday, November 4, 2010

Can we handle the truth?

According to early reports of George W. Bush's memoirs due out next week, when the CIA asked for Bush's approval for waterboarding Khalid Sheik Mohammed, Bush supposedly responded:   "Damn right."  I don't want to make light of this admission, but it sure sounds a lot like this exchange: 



Bush's acknowledgment that he approved the waterboarding of prisoners, will undoubtedly re-open old wounds.  It seems unlikely we will be able to debate this issue dispassionately, given the increase in partisanship evidenced by this week's midterm election results.  Critics on the left will be quick to condemn the former president, to complain about the continued mistreatment of prisoners, and to express anger at President Obama and Attorney General Holder for failing to pursue criminal prosecutions of CIA interrogators, and possibly the former president and vice-president themselves.  Critics on the right will wax nostalgic for the toughness of the last administration, and take the opportunity to decry the supposed softness of the current one  (despite the fact that the Obama administration has a pretty strong record so far of taking out terrorists).

What I would remind critics on the left is that Bush was operating under the protection of opinions from the Office of Legal Counsel that waterboarding was not torture.  Even though these opinions were later revoked by the Bush administration itself, they would probably cover the administration in any attempted prosecution under US law.  Even if that were not the case, it would be nearly impossible to obtain a conviction of these officials in most US jurisdictions.  If they could recite Jack Nicholson's speech with even half his swagger, most juries would probably start applauding.  But I would also caution the critics on the right to remember that under international law, it is about as clear as it could be that waterboarding is in fact torture, and that the Bush administration's use of torture violates important treaty obligations of the United States.  And it is far from clear that torturing Guantanamo detainees was either necessary or even helpful, and it has made some of those detainees impossible to prosecute.  In addition, Bush and Cheney might have to be careful what countries they travel to in the future, because they could face real dangers of prosecution themselves.  What has changed is that the government no longer tries to defend the practice of waterboarding or other methods of torture.  Everyone should be thankful that this shameful episode in US history, in which we resorted to those methods, is over.

4 comments:

  1. Waterboarding KSM saved lives. I have no problems with it.

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  2. How can you be sure that we would not have gotten the same information or maybe even better information without using torture? And who gets to decide when it is ok to use torture?

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  3. My understanding is he wasn't talking. Would you rather they had given him a Peppermint Patty and didn't get the information and people died?

    Coercive means are necessary when a terrorist will not talk even though the information they know can save lives. And no, the Geneva Convention doesn't apply to al Qaeda and they know that going it so if they signed up for it, they should expect it.

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  4. The Geneva Convention is a red herring. The Convention against Torture, which the United States has signed and ratified, prohibits torture under all circumstances. Period. Bush and Cheney have never tried to make the argument that torture might be justified in some circumstances. The only legal argument that is open to them is that what they ordered was not torture. And that argument relied on opinions from the Office of Legal Counsel that were later repudiated by the Bush administration itself.

    So even if there were circumstances in which you could argue that torture might save lives, which is debatable, and perhaps unknowable, it is still illegal in all circumstances. If somebody decides they want to engage in torture because they think it will save lives, they do so knowing that what they are doing is illegal, and they have to accept the consequences.

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