The one single refrain we’ve heard (especially from Broderists) over the last few years when it comes to those who claim nothing should be done about Bush-era “enhanced interrogation techniques” is that prosecutions or a tribunal would prove to be too divisive and distracting for our country.  At root, this argument only makes sense if there’s some question as to whether “enhanced interrogation techniques” constitute torture – there’s no dispute that the “techniques” were used, and with the possible exception of President Bush himself, there’s not much dispute as to who was involved in authorizing the use of those techniques.  If everyone agrees that those techniques were illegal and torture, then what could possibly be divisive about prosecuting someone who acknowledges committing an illegal, unconstitutional, and unconscionable act?

In other words, the “too divisive” argument against prosecution hinges entirely on the notion that it would be “too divisive or distracting” for us to conduct trials or tribunals aimed at determining, once and for all, whether “enhanced interrogation techniques” are torture.  To be sure, this argument is pretty weak to begin with.  But it also assumes that a failure to prosecute will not be divisive or distracting, that if we ignore the issue, it will just go away.

It has now been almost four and a half years since the legality and morality of “enhanced interrogation techniques,” and specifically waterboarding first entered the public eye.  Yet we’re still having the debate.  Four and a half years of debating one simple question that could be answered in a short trial.  Whatever the results of such a trial, how long would it take for everyone to get on with their lives and for our public discourse to begin to focus on other issues?  In our 24-hour news cycle, ADD culture?  A few months?  A few weeks?  Even a few days?  But certainly not four and a half years. 

Would such prosecutions really tear the fabric of our country asunder so desperately as to endanger the Republic or at least cause even more long-term problems (which is to say almost none) than impeaching a sitting President for lying in a private capacity lawsuit about sex did?  I rather doubt it.  But certainly, ripping the band-aid off at once is generally preferable to slowly peeling it off, which is what we’ve been doing, and continue to do. 

These techniques, allegedly, are no longer in use.  The only potential long-lasting national impact from a finding that the techniques are torture is that there will be zero possibility that they will be brought back, as opposed to a minimal possibility that they will.   But without any finding, we just seem to keep revisiting the question, continuing to use it as a wedge, and failing to advance our public discourse at all.  Prosecute them and be done with it, whatever the results.  The country will survive.  No, really, it will.

…Rush?  Cheney?  Levin?  Beck?  O’Reilly?  Or is the Mancow the only one with the stones not only to actually be waterboarded, but more importantly, to admit that it’s torture. h/t Yglesias

I have a confession to make.  Despite all my criticisms of waterboarding, American foreign policy interventionism, and a whole host of other aspects of the modern federal government, not to mention my refusal to consider most of Europe to be a socialist hellhole, I am a proud American exceptionalist.  Which is to say that I do believe there is something exemplary about the US Constitution and the Declaration of Independence, and that as a result the United States can and should be a “shining city upon a hill.” 

Don’t get me wrong – I fully understand the roots of those documents in European intellectualism.  But so far as I know the Constitution, the Declaration of Independence, and the Articles of Confederation were the first attempts to implement all these ideas on a truly wide scale, albeit a scale with an unforgivable oversight, allowance of slavery.  That these ideals have since taken root to varying degrees throughout the world is a tribute to their power. 

The difference between me and other exceptionalists is that I’m serious about it.  If the US of A is to be the “shining city upon a hill” rather than merely a mirage in the desert, it must act that way.  If it wastes precious resources trying to force other cities to be just as shiny, it will find that it has lost some of its own shine in the process; if it tries to, chameleonlike, change its colors to defend against jealous neighbors, it will likewise lose some of the very shine that made those neighbors so jealous; and if it builds its walls too high, no one will see the glow that lies within.

To be sure, at some point that city has to have walls and archers if it is to protect against those jealous neighbors.  Compromises sometimes really must be made if the shining city is to retain any shine whatseover.  But the proud citizen will recognize that this tradeoff is being made and will lament it; he will not pretend that the city’s shine will be unaffected, only argue that the shine will lessen more if the tradeoff is not made.  He will not begrudge his fellow citizens their opposition to the tradeoff but will instead seek to convince them, as friends and neighbors, that the tradeoff is truly necessary.   Perhaps most importantly, the truly proud citizen will not do anything to dull the city’s shine without the approval of his fellow proud citizens.

It is this idealism of mine, this deeply engrained belief in American exceptionalism, that drives me to such anger and sadness over the interrogation and detention programs, amongst many other things, our leaders have implemented – in secret, usually – over the last several decades.  Being a shining city takes a lot of work to keep the shine polished – it is not, as Julian Sanchez explains so magnificently,  cost-free:

If you refrain from savage acts in wartime only when brutality would gain you nothing, what credit is that to you? Even sinners do the same. Vague talk about “saving lives” obscures a vital question: What kinds of costs are you willing to bear, what risks will you accept,  in order to avoid doing evil? If you’re prepared to discard a principle as soon as there’s some significant benefit to be gotten by doing so, then it’s a principle of expediency, not morality. If you’re ready to resort to torture, or to targeting civilians, as soon as there’s some chance it would “save American lives,” then you’re declaring a commitment to abide by moral constraints, so long as observing them is free.

We are required, it seems to me, to choose: We can accept that we’re one more country like any other, guided by pure rational self interest, in which case “if it might save even one American life…” is as much justification as we can ask for any policy, and the only question (though still, of course, a difficult and complex question) is how we go about it.  If, on the other hand, we think there’s something exceptional about the United States—that we’re defined by a particular moral vision beyond the universal desire for comfort and safety—we need to accept that hewing to a moral vision sometimes comes with costs, and then ask how much ours is worth to us.

I couldn’t agree more.  If you think the United States is just another country, or even just another Western country, then the moral issues of whether waterboarding is torture, or whether it was a war crime to drop the atomic bomb, can and perhaps should be either irrelevant or only of minor significance compared to whether those actions saved more lives than they cost.  But if you are a true believer in American exceptionalism, then you must accept that maintaining that exceptionalism comes with costs, perhaps sometimes in human lives. 

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Jim Manzi has a first-rate must-read post on waterboarding at both the Corner and the American Scene.  It is precisely the type of approach I have argued should be made by those of us on the anti-torture side of the question.  It should be interesting to see how the other Corner-ites respond. H/T: John.

First, let me say that I respect Sonny Bunch.  A lot.  I rarely agree with Sonny, but he is clearly and genuinely interested in engaging those with whom he disagrees. 

That said, the posts (and subsequent responsive comment) with which E.D. and Mr. Schwenkler take issue is emblematic of something that has been particularly frustrating to me over the last several days or so.  Specifically, I’m frustrated at the certainty with which proponents of waterboarding and various other procedures outlined in the OLC memos proclaim that those procedures were clearly “not torture.”*

The fact is, whatever one thinks of the legal acumen demonstrated (or, more accurately, not demonstrated) in the OLC memos, and especially the Bybee memo, they do not provide a basis for concluding that waterboarding, et al – especially when combined in one continuous program – are “clearly” not torture.  The Bybee memo itself states quite explicitly that waterboarding in particular is pretty damn close to being torture, going so far as to say that it is a “predicate act” for a finding of torture.  So if you’re going to rely on the Bybee memo as an accurate depiction of the law (which it isn’t – seriously, I’ve seen associates fired for less shoddy memos), then at the very least you have to acknowledge that these actions come pretty damn close to being torture, and that there is hardly anything outrageous or unhinged about calling these acts torture. 

In other words, if you’re going to rely upon a piece of legal analysis as proof that something is clearly “not torture,” then you probably shouldn’t rely upon a piece of legal analysis that (shoddy as it may be) concludes that said something is pretty damned close to being torture. 

*I’m going to give our resident dissenter, Mr. Nuevo, a pass on this since he’s been pretty candid that he’s not sure about the legal aspects of waterboarding.

UPDATE: Cross-posted at Donklephant.

…that before any news commentator states that waterboarding isn’t torture they should at least have to experience it first.   [Read more →]