The trouble with waterboarding

President Bush threatened last week to leave the job of Attorney General vacant for the rest of his presidency if the U.S. Senate insists on asking his nominee for a legal opinion on the practice of waterboarding.

Some days it's hard to remember we're living in America and not in a George Orwell novel.

Just for the sake of sanity and clarity, let's review the problem with waterboarding (an "enhanced interrogation technique" that simulates the sensation of drowning), as well as the problem with denying terror suspects the right of habeas corpus, access to attorneys, and the rest of the ancient judicial protections that the Bush administration considers such a hindrance in the fight for freedom.

The problem is that they might have the wrong guy.

Now you have to ask yourself: What is your tolerance for mistakes?

If a suspect is wrongly accused and he is held for three weeks, or even three months, until the judicial system determines that he is the unfortunate victim of an error, you're probably okay with that.

But what if a suspect is wrongly accused and he is held forever in a prison outside the United States, with no access to courts or lawyers, with no rights, with no way to prove that he is innocent of any crime, real or imagined.

Are you okay with that?

What if a suspect is wrongly accused and he is interrogated with secret "techniques" that include the sensation of drowning and the terror of imminent death?

How does that sit with you?

Legal protections like habeas corpus do not exist to protect guilty people from justice. They exist to protect innocent people from wrongful imprisonment.

We do not know how many people have been picked up by agents of the United States government and subjected to "enhanced interrogation techniques." We do not know how many of those people were fingered by someone who lied, possibly under duress. Everything in the war on terror is secret and there is no way to verify that what the government is doing in the name of keeping us safe is necessary or justified, or even legal.

Is that fine with you?

Maybe you feel a little overwhelmed by the question. No one wants to make a mistake and release a murderous terrorist who will kill hundreds or thousands of people.

That's why the U.S. Constitution does not ask you to answer that question. The framers of the Constitution carefully and thoughtfully devised a system to ensure that decisions about the use of government power were made by elected representatives who answered to the voters, and by judges who were protected from them.

One thing the framers did not do was allow the President of the United States to decide on his own when the country would go to war. "In no part of the Constitution is more wisdom to be found," James Madison wrote in 1793, "than in the clause which confides the question of war or peace to the legislature, and not to the executive department."

On Saturday, President Bush used his weekly radio address to warn that if the Senate continues to question Judge Michael Mukasey about secret interrogations, they would "guarantee that America would have no confirmed Attorney General during this time of war."

On the contrary, the Senate has both a right and an obligation to ask the President's nominee for Attorney General for his views on the legality of waterboarding and anything else the administration is doing in the war on terror. Only Orwell would have imagined that we would topple a dictator in Iraq and cave in to one in Washington.


Copyright 2007

Source note: James Madison, Letters of Helvidius, in Writings, ed. G. Hunt (New York, Putnam, 1900-1910) vol. 6, p. 174, quoted in Raoul Berger, Executive Privilege: A Constitutional Myth (Harvard Press, 1974) p. 65, 68-9. Here's a little more of the quotation:

Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, and the fundamental doctrine of the constitution, that the power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper.

Editor's note: If you enjoy "what-if" fiction, you might be interested in The 37th Amendment, a legal thriller set in the year 2056, forty years after the U.S. Constitution is amended to repeal the guarantee of "due process of law."

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