Posted by: zanshin, 2008-08-20 08:59

Story

Democrats and Waterboarding
Alan Dershowitz, 2007-11-07 (Wednesday), WSJ
The party will lose the presidential race if it defines itself as soft on terror.


I recently had occasion to discuss the Bush administration's war on terrorism with one of the highest ranking former officials responsible for planning that war. He asked me what I thought the administration's biggest mistake was.

I told him that it was not immediately going bipartisan following the attacks of 9/11. President Roosevelt had invited Republicans to join his cabinet as the U.S. prepared to fight the Germans and the Japanese, and President Lincoln had included political opponents in his efforts to preserve the union. Creating a united political front against an external enemy may blunt the partisan advantage expected from a successful military effort, but it helps to keep the country together at a time when partisan bickering can undercut the effort. The former Bush official agreed, regretting that the war against terrorism had become essentially a Republican project.

Now the Democrats appear to be making the same mistake as they move toward what seems to be an inevitable retaking of the White House. Most of the Democratic presidential candidates are seeking partisan advantage from what many Americans see as the Bush failures in the war against terrorism and especially its extension to Iraq and possibly, in the future, to Iran.

This pacifistic stance appeals to the left wing of the democratic electorate, which may have some influence on the outcome of democratic primaries, but which is far less likely to determine the outcome of the general election. Most Americans--Democrats, Republicans, independents or undecided--want a president who will be strong, as well as smart, on national security, and who will do everything in his or her lawful power to prevent further acts of terrorism.

Hundreds of thousands of Americans may watch Michael Moore's movies or cheer Cindy Sheehan's demonstrations, but tens of millions want the Moores and Sheehans of our nation as far away as possible from influencing national security policy. That is why Rudy Giuliani seems to be doing surprisingly well among many segments of the electorate, ranging from centrist Democrats to Republicans and even some on the religious right.

It may seem strange that a candidate, who came to national prominence as the New York mayor, and one with a mixed record in that job, would be the choice of so many on security issues, despite his lack of experience in the national and international arenas. But the post- 9/11 Rudy conveys a sense of toughness, of no-nonsense defense of America.
I am not suggesting that Democratic candidates seek to emulate Mr. Giuliani. But they cannot ignore his tough stance on national security if they want to succeed in the 2008 election, as distinguished from selected state primaries. Marginal Democratic candidates certainly benefit from moving to the left on national security issues, but serious candidates--candidates who want to have any realistic chance of prevailing in the general election--must not allow themselves to be pushed, shoved or even nudged away from a strong commitment to national security.

Consider, for example, the contentious and emotionally laden issue of the use of torture in securing preventive intelligence information about imminent acts of terrorism--the so-called "ticking bomb" scenario. I am not now talking about the routine use of torture in interrogation of suspects or the humiliating misuse of sexual taunting that infamously occurred at Abu Ghraib. I am talking about that rare situation described by former President Clinton in an interview with National Public Radio:

"You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that's the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or waterboarding him or otherwise working him over."

He said Congress should draw a narrow statute "which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court." The president would have to "take personal responsibility" for authorizing torture in such an extreme situation. Sen. John McCain has also said that as president he would take responsibility for authorizing torture in that "one in a million" situation.

Although I am personally opposed to the use of torture, I have no doubt that any president--indeed any leader of a democratic nation--would in fact authorize some forms of torture against a captured terrorist if he believed that this was the only way of securing information necessary to prevent an imminent mass casualty attack. The only dispute is whether he would do so openly with accountability or secretly with deniability. The former seems more consistent with democratic theory, the latter with typical political hypocrisy.

There are some who claim that torture is a nonissue because it never works--it only produces false information. This is simply not true, as evidenced by the many decent members of the French Resistance who, under Nazi torture, disclosed the locations of their closest friends and relatives.

The kind of torture that President Clinton was talking about is not designed to secure confessions of past crimes, but rather to obtain real time, actionable intelligence deemed necessary to prevent an act of mass casualty terrorism. The question put to the captured terrorist is not "Did you do it?" Instead, the suspect is asked to disclose self-proving information, such as the location of the bomber.

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?





Perhaps political campaigns and confirmation hearings are not the appropriate fora in which to conduct subtle and difficult debates about tragic choices that a president or attorney general may face. But nor are they the appropriate settings for hypocritical public posturing by political figures who, in private, would almost certainly opt for torture if they believed it was necessary to save numerous American lives. What is needed is a recognition that government officials must strike an appropriate balance between the security of America and the rights of our enemies.
Unless the Democratic Party--and particularly their eventual candidate for president--is perceived as strong and smart on national defense and prevention of terrorism, the Bush White House may be proved to have made a clever partisan decision by refusing to make the war against terrorism a bipartisan issue. The Democrats may lose the presidency if they are seen as the party of MoveOn.org, Michael Moore, Cindy Sheehan, Dennis Kucinich and those senators who voted against Judge Mukasey because he refused to posture on a difficult issue relating to national security. They will win if they are seen as just as tough but a lot smarter on how to deal with real threats to our national interests.

Mr. Dershowitz teaches at Harvard Law School. He is the author, most recently, of "Finding Jefferson: A Lost Letter, a Remarkable Discovery, and the First Amendment in an Age of Terrorism," published this week by John Wiley & Sons.

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2007-07-29Al-Qaida: the unwanted guests
2007-07-31The American Empire is Failing – A Good Thing for America and the World -- An Interview with Terry Paupp
2007-07-31Franco – Arab Ties Could Yet Survive Sarkozy’s U-Turn
2007-07-31The Only Choices Are Bad Choices -- Endless plans, no good options for Iraq
2007-07-27Back to the Future? -- The Mideast landscape
2007-07-27To Check Syria, U.S. Explores Bond With Muslim Brothers
2007-07-22Fisk Interview with President Khatami
2007-07-24Highlights in the History of U.S. Relations With Russia, 1780-June 2006
2007-11-22Towards fresh disaster in Iran
2007-11-23Power, passion, and neoliberalism
2007-11-28Congress forms panel to study Iraq war
2007-12-02The Smart Way to Beat Tyrants Like Chavez
2007-11-13The new wars of religion
2007-11-07Drawing Borders with Other People’s Blood: A Brief Comment on Ralph Peters’s 'Blood Borders'
2007-11-16The Threat of Maritime Terrorism to Israel
2007-11-06President Bush Discusses Global War on Terror
2007-11-01Noam Chomsky - Controlled Asset Of The New World Order
2007-11-04While Pakistan Burns
2007-11-02Vice President's Remarks to the Heritage Foundation
2007-11-043-2-1… America Prepares To Attack Iran
2007-10-21Cheney Targets Iran
2007-10-21In Pakistan Quandary, U.S. Reviews Stance
2007-10-19Is Brand America In Trouble?
2007-10-16The global Oil grab of 2007
2007-09-09It's the Demography, Stupid
2007-09-08Collateral damage -- The Republican Party is among the war's victims
2007-09-07Understanding the U.S.-Israel Alliance: An Israeli Response to the Walt-Mearsheimer Claim
2007-09-02STRIKING FIRST
2007-09-05'We Are Moving Rapidly Towards an Abyss'
2007-09-15The middle of nowhere
2007-09-15Hezbollah could attack US if it felt threatened says spy chief
2007-09-16Gates Rows Back From 100,000 Target For Us Troops In Iraq
2007-09-14The Iranian Dilemma: things are worse than they seem for Japan?
2007-09-11Bin Laden Appears in 9/11 Video From Al Qaeda
2007-10-04Open Fire
2007-10-03Giuliani's proposal for endless Middle East wars on behalf of Israel
2007-10-06Who Wants To Bomb Iran? Democrats, Not Republicans, Says Seymour Hersh
2007-10-10The public spectacle of the bin Laden video
2008-01-04Obama beats Clinton in Iowa, Huckabee top Republican
2008-01-08Iran Becomes an Issue In Democratic Contest
2008-01-02Turkish accession to the European union: challenges and opportunities
2007-12-31Bhutto Killing Caps West's Year of Failure
2007-12-29Our Indefensible National Security Budget -- Talking Points
2008-01-09Bush's Messiah Complex
2008-01-09Bush in Israel on Mideast peace drive
2008-01-14Bush to court Saudi allies after warning Iran
2007-12-18Time for smart power
2007-12-18Turkey's EU Membership's Possible Impacts on the Middle East
2007-12-10Moment of Reckoning
2007-12-10Timeline: the al-Qaida tapes
2007-12-13Bilderberg 2007 - Towards a One World Empire?
2008-01-30The two faces of Amis
2008-02-15Clinton Started CIA Rendition Program: Ex-agent
2008-01-24The Three Rs: Rivalry, Russia, ’Ran
2008-02-26Fitzgerald: Islam for Infidels, Part Two
2008-02-24Strategy and the Limitation of War
2008-02-23The Two Faces of Saudi Arabia
2008-03-03President Addresses Joint Armed Forces Officers' Wives' Luncheon