Every candidate for president of the United States should be pressed to answer one fundamental question: How far is he or she willing to go in the interrogation of suspected terrorist captives to protect the American people from another terrorist attack on the scale of 9/11 or worse?
No generalities or platitudes, please, nor any nonsense about refusing to respond to hypothetical situations. The president is faced with these threats every day and we have a right to know how a candidate will react in dealing with them. And certainly we should reject out of hand any statements about having to check first with the lawyers. The buck stops with the president when it comes to protecting the lives of the American people.
If a candidate believes that stress positions, sleep deprivation, subjection to continuous loud noise, isolation, extreme temperature variations or waterboarding are off the table as coercive interrogation techniques no matter what, he or she should go on the record and say so. And we should reject that candidate as unfit for office as well as any candidate who will not give us a frank answer.
To be more specific, lets take the case of the 9/11 mastermind Khalid Sheikh Mohammed. After being captured, he was locked away in a secret CIA detention facility and reportedly subjected to waterboarding, which is an interrogation technique that simulates the feeling of drowning without any possibility of a drowning actually taking place. The CIA believes that this is an especially effective psychological technique for breaking resistance to interrogation. It reportedly broke Khalid Mohammed’s resistance after two minutes, leading to his revealing of actionable intelligence that may have contributed to saving thousands of American lives. All the candidates should have to face the American people and say what they would have done differently to obtain this information or whether they would have simply let Mohammed alone when he did not spill the beans voluntarily and risked the devastating consequences of inaction.
For the sake of argument, we will concede that waterboarding is a form of extreme psychological pressure that a reasonable person could regard as rising to the level of torture. We will also concede that there is uncertainty in the accuracy of the information elicited from this interrogation technique. Mohammed might have said anything to end his pain and suffering.
The issue is how we balance this terrorist mastermind’s short-term pain and suffering against the potential for saving American lives with information that would not be possible to elicit from him via the type of questioning that the police normally use with common criminals. Remember that Mohammed already had the blood of 3000 innocent people on his hands. Most Americans would likely worry less over how this excuse for a human being and his cohorts are treated during their interrogation sessions than about finding out in time what additional devilish plots they may have put in motion or know about.
We often hear the argument that America should not debase its own values by employing the atrocious methods of its enemies. This moral equivalence argument is completely bogus. The Islamic fanatics, who included Khalid Mohammed, massacre innocent people on a massive scale to please Allah. Aggressive intelligence is part of our strategic war against the terrorist leaders whose followers launched an unprovoked attack on our civilian population. If and when we use techniques as intense as waterboarding, we do so as a last resort to obtain critical information needed to prevent the recurrence of such massacres.
Two minutes of waterboarding, where the interrogated captive is never in danger of death himself and will suffer only momentary fear of the fate that he so gleefully assigns to others, is hardly the same as the horrifically painful experience of being beheaded or being forced to watch a loved one murdered in such fashion, much less the suffering endured by the 9/11 victims and their families.
In short, the end game of the terrorists’ jihad is to kill themselves and others in order to recreate their Islamic caliphate on earth and buy a ticket to paradise. Our end game is to save lives. One needs to look at the context and reasons for a given action before making superficial comparisons. Put another way, where the harm to innocent people likely to occur without the information needed to stop an attack in time is greater than the harm inflicted during the course of the interrogation that elicits such information, the balance should be struck in favor of protecting the would-be victims of the attack.
Two University of Chicago law professors very effectively turned the moralistic arguments propounded by those demanding a complete ban on coercive interrogation on their head:
“Where coercive interrogation can save lives, not engaging in it might seem the
more brutal choice, especially to those whose lives are at stake. Those people might reasonably hold that there is a sort of brutal callousness, a self-absorbed moral preciosity, in the decision to preserve the law’s archetypal integrity by permitting third-party deaths to go unprevented.”
There are some who argue that our Constitution is being violated whenever we use coercive interrogation techniques against suspected terrorists. They misunderstand the fundamental social compact upon which our democratic republic is founded. We give up a certain measure of individual freedom in return for the collective security that is guaranteed by the United States government. The preamble of the Constitution says that the reason for establishing the Constitution in the first place is so that the people can form “a more perfect union” that will “insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity”. Article 4 goes on to state: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion”.
Our homeland was invaded on 9/11. The threat of a far more devastating attack on our homeland that could kill many thousands of people remains a very real one. It would be a complete perversion of the Constitution’s purpose if we were to protect the so-called “rights” of an alien terrorist, bent on destroying our liberties, at the expense of “our common defense.” Coercive interrogation of suspected terrorist captives believed to be in possession of critical information known only to them about future planned attacks against Americans, and unobtainable by other methods, is not only permissible under our Constitution. It is obligatory if needed to reveal information immediately essential to safeguarding our republic’s security and preventing danger to American lives.
Not even international law is as absolutist against coercive interrogation as some would have us believe. Indeed, the European Court of Human Rights examined Britain’s use of such techniques against members of the Irish Republican Army, including stress positions, hooding detainees, and deprivation of sleep, food and drink, and concluded that they did not constitute torture. Although these techniques when combined resulted in some detainees sustaining “intense physical and mental suffering” that “led to acute psychiatric disturbances during interrogation”, the European Court of Human Rights found that “the five techniques did not occasion suffering sufficient in intensity and cruelty to constitute torture”. However, the court did find that they amounted to degrading treatment because “the techniques were such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.”
Nevertheless, whether characterized as torture or degrading and inhuman treatment, say the opponents of coercive interrogation, we are parties to treaties that would appear to flatly prohibit such techniques under either characterization. And there are to be no exceptions, even in the event of a public emergency threatening the life of the nation. Under this way of thinking, we are to respect the terrorist suspects’ “feelings” of “fear, anguish and inferiority” at all cost!
However, in ratifying treaties such as the United Nations Convention Against Torture, the Senate insisted upon including express reservations that their scope would be limited to domestic jurisprudence decisions interpreting the U.S. Constitution, which always involve a balancing of multiple considerations and competing rights and obligations. Never has the United States acceded to the proposition that it can take no extreme actions even where the life of the nation is threatened and its elected leaders believe that such actions are necessary to protect the American people. Indeed, to do so would violate the very core of the Constitution itself, as discussed above. Treaties can neither override nor amend the Constitution under its “Supremacy Clause.” As the Supreme Court has concluded, it would simply make no sense for a treaty, once in effect as a result of the exercise of the president’s and the Senate’s Constitutional powers, to become the instrument for usurping the legal authority of the Constitution that established those powers in the first place.
The Constitution does not separate us from the rest of the world. Yet it does protect us from having our core liberties as a free sovereign people undermined by some sort of global “value system” adopted by a consensus of unelected officials including from some of the most autocratic countries in the world that practice real torture against their own people on an everyday basis. We “the people,” for whom the Founding Fathers labored to create “a more perfect Union,” will forfeit the unique protections that our own Constitution affords us if we succumb to the tide of world opinion favoring the dominance of such forms of “international law”.
It is indeed very easy to demonize a president’s actions when looking at them through a rear view mirror and imposing a holier-than-thou attitude that equates the behavior of terrorists and their state sponsors committed to destroying our freedoms with the democracies that combat them. The question that all the presidential candidates must answer is whether they prefer applying John Kerry’s “global test” to interrogation of terrorist masterminds like Khalid Mohammed, and place utmost priority on their “feelings” of “fear, anguish and inferiority”, or do what is necessary and practical under the circumstances to protect the lives of the American people.
 Should Coercive Interrogation Be Legal? By Eric A. Posner and Adrian Vermeule,
The Law School of The University Of Chicago (March 2005)
 Ireland v. the United Kingdom, European Court of Human Rights (1978).
 “This [Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.” Reid v. Covert, 354 U.S. 1, at 17 (1956).