Attorney General Michael Mukasey appeared before the Senate today, in his first oversight hearing. Among the questions he was asked were several about whether or not the controversial practice of water-boarding is illegal. And, just as he did during his Senate confirmation hearings, he refused to say. Despite the fact that other high ranking government officials have declared that water-boarding is torture (which is surely is), he took deference to the fact that he is Attorney General, and his opinions speak more about what will and will not be prosecuted. Basically, his stance seems to be that if he were to classify it as illegal, CIA operatives, who underwent a complex approval process to be able to water-board would now be in legal jeopardy.
He also sought to draw lines between when water-boarding was and was not objectionable. I found this argument to be most interesting. Mukasey explained that we must weigh the affect on the mind from performing the act with the outcome of not performing the act. In other words, if we torture to get information about who the individual has had contact with, so we can arrest them as well, this would not be acceptable. But, if we used torture to uncover a bomb that was going to go off and kill people, this would be acceptable. This argument, I think, does much to appeal to people’s pragmatism. Of course we would want no hands tied when trying to find out where that about-to-go-off nuclear weapon is. Who wants a judge standing over a CIA agent, demanding that the prisoner be read his rights prior to undergoing simulated drowning, if we can guarantee that that act will produce the information needed to save lives?
That guarantee is just what prompts critics of water-boarding (and torture in general) to question the act. We cannot guarantee that inflicting pain will produce accurate and reliable information, they argue. And if the information is sometimes accurate, we cannot ensure that it will always be accurate. There are other methods of interrogation that do work and that do not violate basic standards of human rights.
These two sides remain pitted against each other, both convinced that the other side is hellbent on destroying America. The critics of torture would rather a terrorist blow up a city than we inflict pain to stop that bombing. Those torture advocates would see us aligned with our enemies and put our troops at risk of torture, as well as lead the world down a path of degrading human rights in wartime. There seems to be no reconciling between these two viewpoints.
So the real question is, do we currently have a system where we can have it both ways? I believe the answer is yes. Our official position must be that torture is not tolerated. No water-boarding, no thumb-screws, no temperature changes, stress positions, or cramped quarters. The United States does not torture. But then, we need a great clandestine service. These people must be dedicated to the country, to doing anything that is required to prevent an imminent attack. That way, if a nuclear bomb really is about to go off in New York City, and we have no idea where it is, and we have a terrorist in custody who knows where it is, someone can punch him in the face if they think that will get the information. After this is done, and we get the information, and the city is spared, who would question that punch, especially if it is appropriately kept hush-hush.
And if these clandestine service members go overboard, as they surely did after 9/11, they must be reprimanded severely. But not by the anyone except their own organization. The United States does not torture and the CIA (or whomever) does not tolerate violations of their program. It’s what Mukasey described, only with a little more wink-wink, nudge-nudge. Only in a circumstance where there is no other option must we exercise all options. I believe that this is a just compromise between the two sides. No critic of torture would prefer himself to be killed than a killer to suffer some pain. But this guarantee of results must be absolute. If the torture does not lead to results that directly and immediately save lives, then there must be severe punishment.
Unfortunately, such a system, while partly in place in the United States (there’s certainly plenty of behind the scenes activity), is nearly impossible to run fairly and justly. We have no proof that torture will produce accurate and useful information. We have no objective way to apply torture (as we cannot see into the future). So for my own position, it is better to never torture than to torture without results (or justification). It seems like a lot of people on the other side don’t quite see it that way.