Oh look — we’re at it again:
The Central Intelligence Agency secretly detained a suspected member of Al Qaeda for at least six months beginning last summer as part of a program in which C.I.A. officers have been authorized by President Bush to use harsh interrogation techniques, American officials said Friday….
Mr. Bush has defended the use of the secret prisons as a vital tool in American counterterrorism efforts, and last July he signed an executive order that formally reiterated the C.I.A.’s authority to use interrogation techniques more coercive than those permitted by the Pentagon.
Mr. Bush used his veto power last weekend to block legislation that would have prohibited the agency from using the techniques, and this week the House of Representatives failed to override the veto….
Raise your hand if you think that veto pen application had anything to do with legal CYA for the CIA? I’ll let Marty apply the smackdown:
Stuart can think of some techniques that result in more severe physical suffering than waterboarding, such as, supposedly, yanking out fingernails. He might be wrong about the fingernails — as one person who has endured waterboarding explained: "If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I’d take the fingers, no question. It’s horrible, terrible, inhuman torture. I can hardly imagine worse. I’d prefer permanent damage and disability to experiencing it again. I’d give up anything, say anything, do anything." But even so, Taylor is of course correct that we can all think of some techniques that would result in more severe suffering than waterboarding. And what, exactly, does that prove? Suffice it to say that "We’re not quite as sadistic as the Spanish Inquisition" is not a defense, nor a valid form of statutory construction….
Which brings us to Stuart Taylor’s third and final "argument": "Many a lawyer’s interpretation of ‘severe’ might turn on how close in time his decision was to a terrorist mass murder that he fears could soon be repeated. Just as gravity bends light, the need to prevent a catastrophe bends judgment on such subjective questions."
This is very revealing, and I think it is really what’s underlying Taylor’s (and Mukasey’s, and Bradbury’s, and Bush’s) insistence that the statutory question is "difficult": Basically, that we should not take the statutory restriction seriously at all if our motives are pure enough. If the interrogator, and his apologist lawyers and doctors and officials, are genuinely fearful of terrorist mass murder (and who wouldn’t be?), and if they sincerely conclude (albeit without the aid of any actual empirical evidence) that torture is necessary to prevent such "catastrophe," well, then, the physical suffering of their victims just magically becomes less "severe," doesn’t it?
David Cole has more on the veto. Jack Balkin has thoughts on the Bush torture legacy. And a rare kudo for William Safire for calling the Bush Administration’s twisted language what it is: an attempt to gloss and hide their true conduct and unlawful intent.
I keep going back to that horrifying American Prospect article about American torture of prisoners, and then adding in all the many, many questions about how many innocents have been subjected to this indefinite detention without a full and fair trial…for years, perhaps with us knowing all along that they were innocent. That we whisk people away with no legal recourse to be hidden for however long we decide they should be hidden whether or not they are guilty of anything, hide them from the Red Cross, and violate our legal treaty obligations…and they do not even have the decency to be ashamed of themselves? That’s bad enough.
That this leans on the worst of human fears and vengeful behavior to spin out an endless cycle of violence and retribution on all sides, which makes us less safe by their acting the part of the monsters from which they pretend to save us. That they cannot see this is horrible. That we have not been able to stop it is worse.
These are more than violations of law, they are violations of our social contract — of our moral and ethical responsibility to future generations not to sink back into the barbarism from whence we attempted to rise. We are violating that civic and moral trust to work ever toward a "more perfect union" placed in our generation’s hands by the Founders of this nation…and I cannot begin to express the level of anger and shame that we all ought to feel as a result.
Shame on every single one of us.
(YouTube — trailer for Taxi To The Dark Side.)