Seven Days in May

VICTOR REPPERT SAID:

“The Nixon administration was involved in break-ins and various other illegal activities long before Watergate. That is why they couldn't just let the perpetrators hang. They feared Left within the United States, and they feared losing control of the White House because they thought a more dovish President might endanger the country.”

So you say, but I haven’t seen you furnish any evidence that Nixon was motivated by national security concerns. And, from what I’ve read, Nixon tried to pin the blame on the CIA–which would be rather odd if national security concerns were uppermost in his mind.

Seems to me that your filtering events through a Seven Days in May scenario.

“The point I have been making is that you don't break international and American law to do something unless you have good reason to believe that that's the only way to protect the country from serious disaster.”

I don’t concede that the Bush administration broke the law. Maybe it did and maybe didn’t. You can quote lawyers on both sides of that issue. Obviously John Yoo would beg to differ with your assessment.

I’m more interested in your philosophy of law.

“So if you were going to waterboard a terror suspect, you would have to know in advance that there was an active terror plot that the suspect knew about, that you couldn't get the information about it out of him any other way, but you could get that information out of him by waterboarding him.”

Well that badly misses the point. For interrogation is a primary means of acquiring advance knowledge of a terrorist attack.

“To waterboard someone without justification of that degree would, in my view be wrong.”

Of course, we’re not talking about “someone”–like your aunt Mae. No, we’re talking about a terrorist.

“Here I think it is easy to commit what I call the toughness fallacy. We know that these jihadists mean us nothing but harm, so the most effective response to them is the toughest response. Let's waterboard them and get them to tell us what they know. (After all, they're Muslims, and so they've probably been reprobated anyway. Whatever we do to them is nothing compared to what God has in store for them in eternal hell, so why not give them a little foretaste of the future?).”

Do you think that’s a serious characterization of the position you oppose? Where did you come up with that, anyway?

There is no prior assumption that the harshest methods are the most effective methods.

The issue, rather, is whether we should unilaterally disarm ourselves by refusing to use effective methods simply because our methods are coercive to one degree or another.

“Unfortunately, even though that's the tough think to do, I think it's not the smartest thing to do. Experts on interrogation have argued that while you may get someone to talk this way, you are likely not to get accurate information in so doing.”

You think that people like me are unacquainted with that objection? You think that people like me have no response to that objection?

In principle, it’s no different than the tactics which the police or FBI use. They arrest a flunky. They threaten him with hard time unless he spills the beans on the boss. But if he cooperates with the authorities, he’ll get off light.

Do they assume that what he tells them is true? No. They simply treat that as a lead. They then pursue the lead to see where it takes them.

However, the suspect is motivated to tell them the truth, for if he gives them a false lead, that will come back to bite him. If the lead turns out to be a false lead, then he’s worse off than he was before. He only gets the plea deal in case the information checks out.

There’s a similar dynamic when it comes to the interrogation of a terrorist. Lying to the interrogator only buys you a temporary reprieve.

Have you even made the slighted effort to think this through, Victor? Or do you just glom onto whatever argument dovetails with your prejudice?

“Where is the hard evidence that we stopped any terror attacks this way?”

i) Well, to take one example of many, John Brennan, Obama’s chief advisor on counterterrorism, has said Bush administration policies (e.g. rendition, enhanced interrogation) saved lives.

ii) More to the point, however, is the way you’ve rigged the burden of proof. You think that, when in doubt, we should give the terrorist the benefit of the doubt. When in doubt, put the public at risk rather than the terrorist.

I don’t share your priorities.

“Special ops may like doing this, because it gets results on their end, but it might do no good or worse than no good where the terror activity is actually going on.”

Of course, the purpose of eliciting this information is to prevent certain types of terrorist activity.

“It's a little like the just war theory. When you use means that are ordinarily immoral to achieve a moral goal, it has to be the case that the means-end relationship is going to work. Otherwise, you were breaking all sorts of moral rules, not to mention international law, for nothing.”

Of course, that’s a straw man. No one is suggesting that we break the rules “for nothing.”

“No I'm probably enough of a deontologist that I wouldn't support waterboarding even if it would do more good than harm overall.”

Fellow deontologists like Jeremy Pierce don’t share your sentiments. So even if deontological ethics were the only way to go, that underdetermines your position on coercive interrogation.

“What I am saying is that the evidence suggests that we didn't have adequate reason for taking the moral risk involved in waterboarding.”

i) I don’t view that as a “moral risk.”

ii) A number of credible individuals disagree with you. Take Michael Hayden, for instance.

“Assuming that we are going to be enough of a teleologist in ethics to say that the end, in this case, might justify the means, we have to be sure that we could achieve the end by using the means, and we couldn't achieve the end without using the means.”

We almost never have “certainty” in warfare or counterterrorism. That’s an absurdly unrealistic standard. What we have are probabilities and risk assessments.

That’s the world we live in, Victor.

“In the case of the ‘underwear bomber’ people were saying it was too bad we couldn't waterboard him. But the fact is he was singing like a canary without such coercive interrogation techniques.”

i) I have no opinion on whether or not we should waterboard a terrorist. I’m not advocating a particular technique. And I expect that the efficacy of a given technique varies from one terrorist to another.

ii) Rather, my position is that we should give interrogators a certain amount of leeway to use the methods which they deem effective.

That doesn’t mean anything goes. But that also doesn’t mean we unilaterally disarm ourselves and don love beads to ward off suicide bombers.

iii) One of the problems with Mirandizing a terrorist is that you transfer the balance of power from the interrogator to the terrorist. The terrorist is now in control, not the interrogator. You have given the terrorist the right to speak or remain silent. And if he chooses to speak, he only does so on his own terms.

“Do people understand that we brutalize ourselves when we allow ourselves to torture others, not matter what the reasons?”

i) I don’t know what you classify as torture. Is sleep deprivation torture in your book?

ii) And as far as “moral risk” is concerned, I’m far more concerned with the moral risk of failing to protect the innocent from wanton death and destruction. That’s where our primary obligation lies.

iii) No one is suggesting that we coerce an individual “no matter what the reasons.”

That’s a straw man argument. It betrays your inability to have a philosophically serious engagement of the issues.

“I believe in the rule of law, but I think if there is enough evidence that breaking the law will do enormous good, then a case might be made for breaking it.”

i) Do you feel the same way about jaywalking?

You set the bar so high that you remind me of a phobic individual who lives in fear of accidentally stepping on cracks and lines in the sidewalk.

ii) Human laws are manmade rules, Victor. Enacting into law by shortsighted men who tend to be crisis-driven. Laws that fail to anticipate unforeseen circumstances.

We need to be adaptable, Victor. Do we exist for the sake of the law, or does the law exist for our sake?

A set of laws should never become a trap that prevents us from moving out of harm’s way. As if we should sit there and wait to be mowed down because we mustn’t break our own rules.

If we made it, we can break it.

This is not a game of chess or poker or hocky or football. If you lose a game, it’s only a game. If you lose your life, there is no rematch.

iii) It’s also disingenuous for you to keep retreating into the rule of law. After all, it only takes an act of Congress or judicial ruling to change the law.

If Congress legalized waterboarding tomorrow, would you still take refuge in the rule of law? No. Because you disapprove of waterboarding. So the legality or illegality of the practice is irrelevant to your actual position.

iv) Keep in mind that I don’t concede your premise (i.e. laws were broken). I’m discussing your position for the sake of argument.

“We have nowhere near the necessary evidence in the waterboarding cases.”

Once again, Victor, that’s circular. Interrogation is a means of gaining the necessary evidence in the first place–to forestall an impending attack.

Your position reminds me of epic movies about the Napoleonic wars. Units have to stand in formation on the battlefield as cannon balls mow them down. They’re not allowed to move aside when they see the cannon ball coming–cuz that would be against the rules, ya know.

Instead, they’re supposed to stand there like toy soldiers as row after row are flattened by incoming ordnance.