The "Ticking Time Bomb" ... in theory and in practise

So we finally 'officially' hear what everyone (and that includes the foaming RW that is in favour of such) already knows:

The CIA has for the first time publicly admitted using the controversial method of "waterboarding" on terror suspects. CIA head Michael Hayden told Congress it had only been used on three people, and not for the past five years.

He said the technique had been used on high-profile al-Qaeda detainees including Khalid Sheikh Mohammed.

So it's "only" three people, the 'baddest' of the 'baddies'.... No problemo, de minimis non curat lex and all that....

Congress has been debating banning the use of waterboarding by the CIA.

President Bush has threatened to veto such a bill.

[The military is currently prohibited from waterboarding, though (see here, too)]

Why? Why do we need to keep waterboarding within the preznitential options?:

He told Congress: "We used it against these three detainees because of the circumstances at the time.

"There was the belief that additional catastrophic attacks against the homeland were inevitable. And we had limited knowledge about al-Qaeda and its workings.

[my emphasis]

So, we have the quintessential "Ticking Time Bomb" (discussed here). We did it because time was of the essence, and lives were at stake, and there was no other way (and all that). Soooooooo ... how'd that work out? How many plots did we uncover thanks to this waterboarding? Well....

There's the Lisbon train bombings ... umm, nevermind...
There's the London Tube bombings ... umm, nevermind...
There's the Bali bombing ... umm, nevermind...
There's the second Bali bombing ... umm, nevermind...
There's Richard Reid's shoe bomb ... umm, nevermind...

OK, so maybe a few plots weren't stymied by this waterboarding, but think of the ones that were:

The Sears Tower plot ... umm, nope, good ol' gumshoe work stopped that one.
The Brooklyn Bridge plot ... umm, nope, good ol' gumshoe work again.
The Fort Dix Pizza plot ... umm, nope, good ol' gumshoe work again, and an alert video store.

All in all, a ragtag and inept bunch of amateurs, rounded up thanks to standard law enforcement and the plotter's own incompetence (not to mention possible instigation by the police infiltrators/informants) ... and hardly a serious threat in any case because of the impracticality of their plans.

So: Didn't we need to waterboard, just to prevent further horrors? Couldn't it be that future "circumstances" will -- once again -- militate in favour of our "freedom to waterboard"?

Here's DNI Mike McConnell (from the BBC article):

"The threats we face are global, complex and dangerous," he wrote.

"We must have the tools to enable the detection and disruption of terrorist plots and other threats."

"Vee must haff ze toolz....." Maybe thumbscrews, pliers, and cattle prods too. But only if 'really necessary'...

More on this sentiment here:

US 'may' use waterboarding again

US President George Bush might consider authorising the controversial interrogation method of waterboarding in future, the White House has said.

Belief that an attack was imminent and legal advice would be major factors in the decision, his spokesman said.

On Tuesday the CIA admitted for the first time that it had used the method, which simulates drowning and has been condemned as torture by rights groups.

Key Democrats are demanding a criminal inquiry into whether its use was legal.

"Belief that an attack was imminent".... But of course; that worked so well last time.... Oh. It didn't? Well, it coulda......

As for "legal advice", I have some. For free. Dubya, you need a new lawyer. And I can only hope that you have to check the Yellow Pages in the Hague....

Over at Balkinization, Jack Balkin has a related page up on this subject, and I've added some comments there. As I point out in one comment, the focus on waterboarding is missing the forest for a few trees the maladministration wants you to look at.


Update:

From the S.F. Chronicle, we have this little gem:

Hayden said Khalid Shaikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. Hayden banned the technique in 2006, but National Intelligence Director Mike McConnell told senators during the same hearing Tuesday that waterboarding remains in the CIA arsenal - so long as it has the specific consent of the president and legal approval of the attorney general

Soooo ... "when the president does it that means that it is not illegal."

And the "legal approval" of the attorney general"?!?!? What effin' difference does that make? Are the laws of the United States conditional on the "legal (dis)approval" of the Attorney General?

We're back to my "exigency" analysis. The maladministration thinks it's legal if it really needs to be done....

I'd note that if this was the "justification" for the waterboarding of the three detainees just admitted to, this would imply "consent" (and knowledge) of the preznit, and "legal approval" of the AG for those. If, then, waterboarding is in fact illegal, they are complicit in the crime.


Update 2:

Talking Points Memo's TPM Muckracker reports that the maladministration is proud of their efforts in bringing the subject up:

The administration's pro-waterboarding PR offensive continues!

Today, White House spokesman Tony Fratto made clear that this was a clear, conscious decision to make the push, and that it's an interrogation tool they definitely want to have as an option going forward:

"And so the consensus was that on this one particular technique that these officials would have the opportunity to address them — in not just a public setting, but in a setting in front of members of Congress, and to be very clear about how those techniques were used and what the benefits were of them."

Fratto said CIA interrogators could use waterboarding again, but would need the president's approval to do so. That approval would "depend on the circumstances," with one important factor being "belief that an attack might be imminent," Fratto said.

Fratto also apparently used the administration's it's not torture because "we do not torture" line. And "torture is illegal" and this was deemed legal therefore it's not torture. You can choose your favorite tautology.

Does anyone notice the absence of the phrase "rational belief"?!?!? But even if we'd grant these morons the benefit of the doubt in allowing them to decide when the circumstances 'justify' the procedure, I'd once again return to the fact that whether something "should be done" is a different question as to whether something is (or should be) legal.


Update 3:

The maladministration's transcript is up (h/t to Balkinization and the Harvard Anti-Torture Coalition) here. And a few choice gems from the lips of Tony Fratto:

Q But, Tony, if a big enough fish is captured, the President could authorize the intelligence community to waterboard based on the belief that there may be actionable intelligence there; is that accurate?

MR. FRATTO: What I have said is -- first, I'm not going to speculate on what the President may or may not do or on what proposal the Director of the CIA will bring to the Attorney General and to the President. What I have said is that any change in the enhanced interrogation techniques that may be used will follow the process that I outlined, which includes a legal review and notification of Congress.

Q Just to clarify, so you're saying that it's not torture and you're saying it's effective -- then why is it not currently authorized, waterboarding?

MR. FRATTO: General Hayden addressed that, he talked about any technique that you use, you use it under certain circumstances. It was something that they felt at that time was necessary and they sought legal guidance to make sure that it was legal and that it was effective. What he has said is that the program has evolved and the knowledge of the enemy has evolved. And their knowledge of how to interrogate in effective ways has evolved also.

So they're the professionals, they determine what is effective and what gets the information that we need to keep the nation safe. So it is a decision that the agency made. I could refer you to them, to see if they can explain it further; but it was their decision, they're the professionals.

"[T]hey're the professionals...." They determine "what gets the information we need". And that's all you need to know: "Professional 'interrogators' on a closed track; don't try this at home." Wow. Gives me the warm fuzzies just thinking about it. But don't the eedjits in the maladministration not believe in evolution? Just askin'....

... and more from Tony Fratto:

... what the Attorney General said was that any use of any enhanced interrogation technique depends on the circumstances: who is carrying out the interrogation; ...

Translated from Republican into English: "If we're doing it, it's not torture...."


Update 4:

Balkinization has a couple of related posts on this here and here.


Update 5:

On the subject of "worst of the worst", Tracy Lightcap puts things in proper perspective here with two juxtaposed quotes (which I'm shamelessly cut'n'pasting):

"Hayden's recent "admission" to Congress identifying the high ranking al Qaeda officers broken by waterboarding merely reinforces the CIA's argument that waterboarding is reserved for the worst of the worst terrorists in order to save lives."

"“The Central Committee of the VKP(b) explains that the application of methods of physical pressure in NKVD practice was made permissible in 1937 … It is known that all bourgeois intelligence services use methods of physical influence against the representatives of the socialist proletariat and they use them in the most scandalous forms. The question arises as to why the socialist intelligence service should be more humane against the fanatical agents of the bourgeoisie, against the deadly enemies of the working class and the kolholz peasants. The Central Committee considers that physical pressure should still be used unconditionally, as an appropriate and justifiable method, in exceptional cases against known and obstinate enemies of the people.”
-Secret telegram sent by the Central Committee to all party and NKVD units from district level up, 10 January 1939 (Khlevnuik 2003, 31)."