Brad's post below highlights the disagreement over the extent to which torture (specifically waterboarding) was useful in extracting valuable information from Al Qaeda operative Abu Zubaydah. But it's worth pointing out that even if former CIA agent John Kiriakou is right when he maintains that torture was helpful, this isn't a very good argument against the bill working its way through Congress that would ban such interrogation techniques. Kiriakou, in voicing his opposition to torture, describes the incident as "an ugly little episode that was perhaps necessary at that time. But we've moved beyond that." This seems like just the type of thing Jack Balkin envisioned when he wrote:
Suppose you believe that there are a small number of situations posing immediate peril to a large number of people, in which torture is absolutely necessary to elicit the key information that will prevent the peril, so that every nation in the world will practice torture under these circumstances.
At the same time you wish to deter the use of torture in every other circumstance, because you are worried about descending down the slippery slope to situations where a great peril is not imminent, or where the information elicited by torture is not necessary to prevent this great peril but is merely helpful to advance national security or other important interests.
The best way to achieve this set of goals would be not to carve out a legal exception for torture in emergencies but rather to impose a total ban. If the situation is so dire that torture is absolutely necessary to save a large number of people, illegality will not be a deterrent. Government officials will still commit torture. Then, after the fact, legal decisionmakers can determine whether their actions should be excused or pardoned.
Which, apparently, is exactly what Bush is contemplating doing.
--Josh Patashnik