November 7, 2007

The Open Option Or The Hypocrite Option?

Alan Dershowitz argues that the debate in the Senate this week regarding waterboarding demonstrated a level of hypocrisy beyond the issue of Congress demanding that an Attorney General nominee enforce laws they refuse to write. In today's Opinion Journal, the Harvard professor notes that almost everyone would expect the executive branch to use whatever means necessary in the ticking-bomb scenario to protect innocent American lives -- and therefore Michael Mukasey answered correctly that the circumstances would dictate (under current law) whether a particular application of waterboarding violates the law. In fact, the hypothetical became reality for the Israelis, and will likely do the same for Americans:

Recently, Israeli security officials confronted a ticking-bomb situation. Several days before Yom Kippur, they received credible information that a suicide bomber was planning to blow himself up in a crowded synagogue on the holiest day of the Jewish year. After a gun battle in which an Israeli soldier was killed, the commander of the terrorist cell in Nablus was captured. Interrogation led to the location of the suicide bomb in a Tel Aviv apartment. Israel denies that it uses torture and I am aware of no evidence that it did so to extract life-saving information in this case.

But what if lawful interrogation failed to uncover the whereabouts of the suicide bomber? What other forms of pressure should be employed in this situation?

This brings us to waterboarding. Michael Mukasey, whose confirmation as attorney general now seems assured, is absolutely correct, as a matter of constitutional law, that the issue of "waterboarding" cannot be decided in the abstract. Under prevailing precedents--some of which I disagree with--the court must examine the nature of the governmental interest at stake, and the degree to which the government actions at issue shock the conscience, and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process.

The members of the judiciary committee who voted against Judge Mukasey, because of his unwillingness to support an absolute prohibition on waterboarding and all other forms of torture, should be asked the direct question: Would you authorize the use of waterboarding, or other non-lethal forms of torture, if you believed that it was the only possible way of saving the lives of hundreds of Americans in a situation of the kind faced by Israeli authorities on the eve of Yom Kippur? Would you want your president to authorize extraordinary means of interrogation in such a situation? If so, what means? If not, would you be prepared to accept responsibility for the preventable deaths of hundreds of Americans?

Dershowitz argues that most Americans, and probably almost all of Congress, would expect the government to act in protection of its citizens, understanding that war forces difficult choices onto Presidents. Bret Stephens made more or less the same argument yesterday, talking about the Allied bombing campaigns of World War II, including Hiroshima. Winning the war saved lives, and not just American lives. Bringing Germany to its knees through extensive bombing of its industrial base made their collapse come sooner rather than later, and not only saved troops on both sides of the battle lines but also allowed us to liberate death camps before the Nazis could finish what they started. Hiroshima and Nagasaki lost around 200,000 people, but an American invasion of Japan would have cost over a million American lives, and millions more Japanese. We saw that much on Iwo Jima.

Dershowitz wants Congress to essentially grow up. Both John McCain and Bill Clinton have publicly recognized the necessity of action in the ticking-bomb scenario. Waterboarding and other coercive techniques work, and when one has only days or hours to stop an attack that could kill thousands, the executive should have the authority to make that call. Rather than just say, "Let the President do it, and if it's the right call, we won't impeach him," Dershowitz believes a legal mechanism for that call should exist. In that manner, the process can be open, documented, with understandable rules and boundaries, as befitting a nation based on the rule of law. Otherwise, all we have is the rule of whim in both branches.

Will Congress grow up? The spectacle of the last three weeks doesn't give any indication of it. Either pass explicit laws banning the use of waterboarding, or acknowledge the necessity of keeping some options open for worst-case scenarios, and outline the parameters of which scenarios qualify.


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