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Wednesday, April 22, 2009

An Entirely Political Exercise Masquerading as Constitutional Debate

Let's try a thought experiment. Let's suppose that the Bush administration didn't use waterboarding and other enhanced interrogation techniques when capturing the likes of KSM. Let's further suppose that there was an attack several years later and it was then learned that KSM knew about it but we didn't get that information from him. Does anyone believe that this day, now, we wouldn't be using each and every tough interrogation technique available? Does anyone believe that anyone but the truly looney would have any doubt about their legality? Does anyone think we would be debating whether or not we should try those that made legal opinions about its legality?

What's truly infuriating about this debate is that many on both sides are turning a political debate into a Constitutional one. Let's make this clear. Whether or not waterboarding and other tough techniques are or are not torture is NOT clear. It is a debate that folks all stripes can have till everyone is blue in the face and reach no resolution. Furthermore, whether or not this is or is not Constitutional is also entirely unclear.

Here's how I know. Back in the 1940's, FDR set up an office of censorship. That's right. FDR brazenly violated the First Amendment. Now, I don't remember any of the lawyers involved in formulating the legal opinion to allow him to do this ever being threatened with prosecution. I don't remember anyone involved with this policy ever being threatened with prison. During WWI, Woodrow Wilson set up the Creel Commission, which among other things opened up mail of war opponents. This blatant violation of the Fourth Amendment landed no one in jail. Just more recently, the District of Columbia was found to violate the 2nd Amendment with their handgun ban. Despite decades of illegal activity, no one associated with the formulation or implementation of this blatantly unconstitutional policy was ever threatened with jail time.

The main difference between the three examples that I cited and the Bush policy is that those three were perpetrated against American citizens themselves not our enemy during war time. Now, some will purport to say that while FDR can censor and face no punishment, President Bush can't dunk Al Qaeda in water in order to gain valuable information that winds up saving American lives.

If the Obama administration believes this policy is both unnecessary and unconstitutional, then they should proceed without it. Furthermore, the best way to prove their point is to keep America as safe as the Bush administration did without its use. All the Obama administration needed to do to indict this policy is to make sure that there were no attacks under its watch without using it. Yet, that wasn't good enough. Istead of simply moving forward with that goal, they skipped, three months into their term, by trying to indict, literally, their predecessors.

This is a political exercise masquerading as a Constitutional one. What exactly will justice find to be illegal? Al Qaeda wear no uniform. They represent no country. They target civilians. Where exactly in the Constitution is there a black and white assertion that waterboarding these folks is against the Constitution. If the current Justice Department decides this interrogation technique is illegal, they can draw that opinion. Furthermore, the Obama administration can follow that opinion. To then decide that because another administration interpreted the Constitution differently on the same issue that would be an illegal act would masquerade a political debate as a Constitutional one.


Anonymous said...

The constitution says that treaties that we sign become part of the law. We've signed treaties with the UN and others outlawing tactics such as torture.

The biggest problem with torture is that it produces too many false positives to be useful.

mike volpe said...

If you need to make up something, your argument means nothing. We don't sign treaties with the UN.

I assume what you are talking about was the Geneva Convention. The Geneva Convention stipulated the rules of war including how to treat POW's. It also defined a proper military person. That person wears a uniform and fights under the flag of a nation and also battles against other military. Al Qaeda fits none of those. Thus, they get no Geneva convention protections.

Your second point has more to do with tactic rather than constitutionality. Frankly, that is a question beyond both of us. I will leave it to the interrogators themselves to decide when a certain tactic is appropriate. The reality is that each of these techniques were used in a very limited role likely in lieu of your point.

chaoticsynapticactivity said...

Anonymous: Go ahead, believe in that drivel. Who's data are you using, anyhow? Do you live in LA? Wold it have been OK with you to let planes fly into buildings out there?

Were you one of them hollering "What did Bush know and when did he know about it?"

Oh, and forget that Congress doesn't have the guts to make a law on what the US considers as "torture." Daniel Pearl, rest his soul, knows what torture is, at the end of a rusty, dull knife.

You up for a little jaunt to the caves of the 'Stan to bring those demented people to justice? how about the AQ in Iraq who did it to hundreds of people? too far, then go to Thailand, or the Philippines, or India and you can make your brave stand against the forces of Islamic Terror there, if you have any backbone.

Oh, I forgot...they aren't part of the military of a sovereign nation, that has signed treaties, so they get off your hook.

Sleep deprivation? I got it standing the watch for 20 years so you could say things like you have, and believe in such ridiculous arguments. Cold places to sleep, sometimes pretty hot, and sometimes I missed chow, because I was working on deck. Yep, had water bugs the size of my thumb in my room at night in TX, but I wasn't afraid of them (because I got more of an education than memorizing a Koran, for one thing). It wasn't torture to me, but the cost of service to the citizens of the US I gladly did.

You're welcome, you ingrate.

Anonymous said...

It produces too many false positives to be useful?

On whom was it used? Very few. Did it saves lives? Yes it did.

Too many false positives? I don't think so.

Anonymous said...


can we have more of your analysis?
you seem so objective!