06/25/2009 05:12 am ET | Updated May 25, 2011

Cheney and Torture

A few more words about the use of torture in pursuit of national security goals in the wake of former Vice President Dick Cheney's deeply sick speech at the American Enterprise Institute on May 21.

About that speech itself I will say very little, since so many others, such as Jonathan S. Landay and Warren P. Strobel, Dan Froomkin(check out Froomkin's links, too) and, in a more historical and ongoing way, the sources I mention at the end of this previous post, have already quite conclusively taken apart Cheney's many lies

  • "Waterboarding," beyond any doubt at all, is torture under domestic and international law to which the US is a signatory. I don't know why we're still arguing this question; it is settled.

  • Far from being limited to three individuals, as Cheney implies, many hundreds and possibly thousands of individuals have been tortured (if not necessarily waterboarded) by the "enhanced interrogation techniques" that Bush and Rumsfeld approved, with legal rationalizations from Jay Bybee, John Yoo, and David Addington.
  • A bipartisan Senate Armed Services committee report has acknowledged that these techniques and policies have resulted in some detainees being tortured to death. A Human Rights First report puts the overall number of deaths in US detention at as high as 98.
  • Quoting this report: "According to the U.S. military's own classifications, 34 of these cases are suspected or confirmed homicides; Human Rights First has identified another 11 in which the facts suggest death as a result of physical abuse or harsh conditions of detention. In close to half the deaths Human Rights First surveyed, the cause of death remains officially undetermined or nannounced. Overall, eight people in U.S. custody were tortured to death."

  • There is no credible evidence whatsoever that these "enhanced interrogation techniques" saved any American lives, much less the thousands or "hundreds of thousands" [!] that Cheney suggested in his AEI speech. Fox News and Jay Nordlinger at the National Review seem to think that Cheney's word is good enough. The rest of us may have reason to disagree.
  • Abu Ghraib was certainly not a rogue operation, but rather abuse that occurred as a result of the direct orders and policies of Rumsfeld and Bush. There's been quite a bit of very good independent reporting on this from the sources mentioned above; it's hard to believe that any minimally skeptical or curious person would buy Cheney's outrage about a supposedly false connection with the other torture policies of the Bush/Cheney administration. It was part of the same strategy, the same arguments, the same bogus legal package.
  • There is, however, a great deal of evidence that torture has led to Americans getting killed. There is no better way to make a permanent foe of the United States out of someone who may be on the periphery of terror operations, or who may have no connections with terror at all, than to torture that person. And you may make implacable enemies of his family, clan and tribe as well. Ayman al-Zawahira, al-Qaeda's Number Two and the ideological theorist of the organization, was transformed from a geeky student radical to a dedicated terrorist through his experience of torture at the hands of Egypt's secret police in the early 1980s. That Senate Armed Services committee report includes these lines:
  • Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that "there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U. S. combat deaths in Iraq -- as judged by their ffectiveness in recruiting insurgent fighters into combat -- are, respectively the symbols of Abu Ghraib and Guantanamo."

    But rather than taking Cheney's speech apart, I'd like to make an argument about what we must do and not do, in the war on terrorism. I'll start with a recent exchange on torture between Charles Krauthammer and Dan Froomkin at The Washington Post.

    Krauthammer has been defending the use of torture for years, and that's particularly revolting given that he is an MD; there's something seriously wrong with a doctor who will toss aside his Hippocratic oath so casually. On May 1, Krauthammer wrote this piece, in which he basically says that torture is absolutely impermissible except for 1. the "ticking bomb" scenario, and 2. any other situation in which it is deemed necessary to save lives.

    Dan Froomkin, who writes The Post's White House Watch, utterly obliterated Krauthammer's arguments on the same day they appeared. Krauthammer than replied to Froomkin, in this piece that defended the "ticking bomb" scenario with this example:

    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 this enhanced interrogation (as we now say) explained without apology: "If we'd been so careful to follow the [1987] Landau Commission [guidelines], we would never have found out where Waxman was being held."

    It's interesting that Krauthammer has been trying to justify torture for years, and describing the "ticking bomb" for years, and he always uses this same single example, from as far back as an article he wrote for The Weekly Standard in 2005. If these scenarios were so real and so widespread after eight years of a war on terror, you'd think he could do better than that. (Here's Froomkin's exactly-right response to Krauthammer, by the way.)

    But what does this anecdote prove, in any case? That the Israelis were willing to throw out the rule of law when they perceived their interest in doing so to be great enough. But the rule of law is not binding only when it is convenient. It is true all the time, or none of the time. It is not discretionary. That's what law means.

    What did the Israelis gain, and what did they lose? (They didn't gain Waxman alive, by the way; he was killed by his captors while the rescue was being attempted, a fact that Krauthammer holds to be irrelevant. And so it would be, in a moral calculus argument. But Krauthammer is really making an expediency argument.) So at the cost of the rule of law, they got some information. Did the situation justify it?

    Well, the situation was a military variation on a kidnapping. Let's imagine a civilian kidnapping, for ransom, say. To make it suit Krauthammer's scenario better, let's say the kidnappers were threatening to kill a child if a ransom were not paid before a certain time. One of the kidnappers has been captured. Can we torture him to get the location where the child is being held?

    No, we can't, and the reason is that if we do, we are no longer a nation of laws. Once the law goes, anything goes, and people like Krauthammer and Alan Dershowitz are fooling themselves if they really believe that torture can be administered in a rule-based manner (Dershowitz has suggested that judges should be able to issue "torture warrants.") It's a very slippery slope. Without the rule of law, we would all live in terror, all the time; we would be living in Somalia. Much as we want to rescue the child, little as we care for the kidnapper, we just can't do it. The price is too high.

    So what is Krauthammer on about? Does he think his example proves anything, beyond his own lack of understanding of civil society and of his own responsibilities as a doctor?

    And aside from the damage the incident did to the Israelis themselves, to their ability to have confidence in their own law, what were the long-term consequences of the incident in the context of the war in which it took place? The Israelis' "success" in finding Waxman's dead body must be balanced against the confirmation of their reputation as a power that tortures, although this would scarcely have been news to the Palestinians. Does the accumulated bitterness and humiliation of torture -- the incident that Krauthammer describes, and all those other incidents of Israeli torture of Palestinians, both of terrorists and of innocents caught in indiscriminate roundups -- really help Israeli soldiers in Palestinian war zones? Or does it contribute to the continuous process of Palestinian radicalization inherent in the Israeli occupation, a grim cycle of escalating brutality on both sides.

    Question for Krauthammer: If the scenario had been reversed -- if the Israelis were holding a kidnapped Palestinian, as they often do, and if that Palestinian's colleagues then captured an Israeli soldier -- would those colleagues be justified in torturing that soldier?

    Your answer, Mr. Krauthammer? No, I didn't think so.

    The most truly terrible argument made by Krauthammer above, and by Cheney in his AEI speech, is that torture is justified because it works. This is an astonishing non sequitur, and it's equally astonishing that so few seem to notice.

    Even if torture did work -- and professional interrogators agree that it does not, and information gained through torture is usually worthless, and it prevents any subsequent prosecution in a court of law -- would that justify it if it could save American lives?

    Let's continue Cheney's line of reasoning. We could undoubtedly save American lives if we repealed or ignored the Fourth Amendment's protections against illegal search and seizure. Let's allow the police to search any person or any home or office on mere suspicion, or for no reason at all. Let's also repeal or ignore the Sixth Amendment's guarantees of a speedy trial and the right to confront witnesses, the Third Amendment's right to a jury trial, and the Fifth Amendment's right not to self-incriminate. Let's stop being soft on terror! Give the police and the prosecutor the tools they need to catch terrorists!

    If the police and the courts had no constitutional constraints, if they could bust into anyone's home for any reason or no reason, there's no doubt that they'd catch quite a few terrorists, along with several million other people. But we don't let them do that because the price is too high. There's no longer anything worth fighting for. In the trite phrase: The terrorists have won.

    There are certain things that in fact we can't do, even if doing them would save lives. Just as there are things we must do, even if they cost lives. We reserve the right to go to war, even though, inevitably -- and no matter how scrupulously we try to avoid it -- we kill civilians in war. We have to do this, because if our tolerance for civilian casualties in war were zero, we could never go to war. The planet would then be ruled by the likes of Hitler, Stalin, Mao and Saddam. There is a greater good.

    But the other side of this coin is that we have to accept the possibility of casualties on our side, too -- because the cost of not accepting them, of "doing whatever necessary," resorting to torture or the wholesale abrogation of the constitution, would defeat our own ultimate purpose of remaining a free society.

    In a previous Huffington posting, I quoted Benjamin Franklin. It's worth doing so again: "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." Cheney and his ilk don't understand liberty, and they don't understand freedom, what it costs and what it's worth. They are small men and cowards, selling out the rule of law at the first whiff of danger. Let's hope that the constitution survives them, and those who think like them.

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