Waterboarding is not about "discomfort," it is about causing pain and terror. Discomfort is a hard chair and a bright light. Simulating drowning is torture. If al Qaeda captured one of our soldiers and waterboarded him, we’d have no qualms about considering it torture. So, let’s not mince words.
If we accept this proposition, we must accept that in waging the "war on terrror" the United States has engaged in the widespread use of torture. So what are we going to do about it?
There are two macro options and then equally important two implementation options. The two macro options are that either we decide as a society to condone torture or we choose to reject it and reiterate the legal constraints on the use of torture.
Condoning it, frankly, is a lot easier. The consequences are severe, of course. We will be further reviled around the world, we will be contributing to the breakdown of the rule of law, and we place our status as moral beings in jeopardy. But, as a practical matter, we go on. Condoning torture does not require us to do anything further.
Condemning torture, on the other hand, is a real problem. If you condemn it, if you say explicitly that United States officials have been guilty of violating American law and international law, you must now consider how to punish these transgressions. Here come the implementation challenges.
You could first, state that anyone who has engaged in torture needs to be brought before the justice system. This approach is consistent with the concept of the rule of law. But it is a tremendous mess. As a practical matter most of the people guilty of actually using torture will be relatively low-level personnel in the military and intelligence community. I think waterboarding is abhorrent behavior, but I also do have qualms about hauling a bunch twenty-somethings before a court, charging them with felonies, and potentially jailing them for doing their jobs. Yes, I understand that they had an obligation to refuse an unlawful or immoral order, and yes, I understand that shielding them essentially serves to rehabilitate the Nuremberg Defense — "I was just following orders." So, I am conflicted and I don’t have any good answers. But my point is that calling waterboarding torture is the easy part. Figuring out what to do with torturers is hard.
A way to deal with this is to shield low-level people — which again has the negative consequence of sustaining the Nuremberg Defense — but to seek to hold senior leaders responsible. The problem here is the precedent of criminalizing policy disagreement. In this case, the approach is defensible. After all, laws against torture predate the Bush Administration. VP Cheney and his chief advisor David Addington pressed hardest to ignore well-established legal norms, and they could easily be held responsible. But this is a tremendously dangerous road to travel down. Prosecuting Cheney for war crimes may be tempting to some. But what happens with the next change in presidential administration? Will every election bring the possibility of senior leaders being charged with crimes? If the precedent of doing so had existed, can anyone doubt that Bush would have sought to bring charges against Clinton for something or other — maybe for fraud in connection with criminal acts committed by the "Oil for Food" program. And then, wouldn’t this encourage every president to simply pardon all members of his administration before leaving office — thus placing all members of the executive branch above the law?
The temptation to pursue a middle path — to equivocate about whether waterboarding is torture while at the same promising to bar the practice — may seem like politically-motivated cowardice, but it is also a pragmatic response to the problems associated with any clearer position. My thoughts are not at all set in stone on this issue, but I think we need to move past the easy questions and confront the hard ones in this debate.
Bernard Finel
www.bernardfinel.com