The New Republic

Bill of Rights: "Amendment V-- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. "

Amendment VI -- In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

Amendment VIII -- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

- mmathog

November 2, 2007 at 8:33pm

From the Times the other day:

"When Mr. Bush was asked whether he considered waterboarding illegal, he said he would not discuss specific methods used in the interrogation of suspected terrorists. "It doesn't make any sense to tell the enemy whether we use those techniques or not," he said."

Actually, it makes perfect sense to 'tell the enemy' all about our criminal justice system.

You see, although our military and economic muscle is sure nice, at the end of the day, we win because of our ideals.

- mmathog

November 2, 2007 at 8:35pm

Here is Andrew Sullivan's take on the DiFi/Schumer yes vote for Mukasey:

"They both intend to vote for Mukasey, despite his refusal to state that torture, as practised by this administration, is illegal. Every time the Democrats fold on these matters, Cheney tucks a precedent under his belt. Every time they cave into their cowardice and fear, another critical part of our liberty disappears. These precedents are designed to destroy the rule of law and replace it with the rule of a Decider. And they will last for ever, as will the right to torture, because this war is for ever. This is how democracies perish. The rule of law no longer has any party to defend it. The Republicans want no check on the powers of our de facto protectorate. And the Democrats have no spine. We live under the lawless protectorate we deserve. And such lawlessness is always the result when cowards refuse to confront bullies."

Blame, blame, blame.  Marty, your old editor is right, regardless of the Spinelessness of the Dems in congress!

- rishy

November 2, 2007 at 9:01pm

Marty, waterboarding is torture, which is already illegal.  The reason why the Bush Adminstration is striving mightily to argue that waterboarding is not torture is because they know what the implications are if it is held to be torture.  

Perhaps the onus should be on the pro-waterboarding side.  If waterboarding isn't torture, why not simply pass some laws adding it explicitly to the panoply of tactics that can be used against evildoers of any kind, including people who are being interrogated for violent crimes in the US?  Why make the distinctions if it's just a slightly intense version of harsh questioning?

- myzaguirre

November 2, 2007 at 11:52pm

Thougt experiment:

Let us stipulate that the following factual assertions are true.

Waterboarding has been of immense value in the fight against terror.

Take Khalid Sheikh Mohammed. A mastermind of 9/11 and al-Qaeda’s operational leader at the time, he possessed a wide-ranging knowledge of the network’s plans, logistics and personnel. Unwilling to share it voluntarily, he was subjected to forced interrogation. As resilient as he was and defiant, he held out until the interrogators decided to proceed with waterboarding.

Two and a half minutes into the procedure, a broken Mohammed begged for relief. Stunned and shaken, his extensive confession amounted to nothing less than a treasure trove of priceless intelligence.

This case is unusual not in how quickly the waterboarding worked, but how long Mohammed was able to withstand it. Two and a half minutes is by all accounts a record of sorts, as most subjects usually break down inside a minute. CIA agents who undergo this procedure as part of their training rarely last more than 40 seconds. This despite the fact that they are in a friendly environment and know that death is not an option.

Although waterboarding is normally employed as the last resort and the frequency of its use kept secret, it has been made known that so far it has worked every time it has been tried. Thanks to its extraordinary efficacy, is has yielded a great amount of critical intelligence otherwise inaccessible. That has led to the capture of al-Qaeda operatives, stopped deadly plots, and saved many innocent lives. Mohammed’s confession  thwarted a conspiracy to fly an airliner into the Library Tower, the tallest building in L. A.

If these facts are true, how could one want to relinquish this tool? Morally unacceptability underlies the legal arguments. But waterboarding is in fact one of the least injurious among interrogation techniques.

Contrast it with sleep deprivation and cold exposure. Days and even weeks of that  carries can cause long-term physical and psychological damage; and it it often so that the captive faces prolonged hardships and not yielding useful information.

Waterboarding is fleeting, lasting seldom more than a couple of minutes. There is almost no risk of long-term harm. There is no direct physical contact between the subject interrogators. Relatively speaking, it is humane and effective: no raw force, intimidation or long-term duress.

Waterboarding forces on terrorists their own agenda: the horror of dying. The difference is that his anguish is stopped the moment he expresses a desire for it to be so-- something denied to the victims of terror. Terrorists  turn victims into mangled corpses; waterboarding gives them life, without being so much as scathed by their momentary ordeal. The terrorists live and the state owns crucial intelligence that will save innocent lives.

9/11 took place primarily because of intelligence gathering failures. Even though it was thought that Zacarias Moussaoui knew something, he was not interrogated aggressively enough to extract information from him. Had he been, things could have turned out differently. Waterboarding seeks to prevent tragedies like 9/11 from recurring.

Are a few moments of a terrorists’ discomfort more important than the lives of the innocents they seeks to destroy? Are two minutes of Moussaoui’s anguish worth more than the three thousand lives lost on 9/11? Does his momentary pain override a lifetime of hurt of those left behind?***

*** Some of the foregoing is a paraphrase of an email a friend of mine sent to me.

- basman

November 4, 2007 at 1:45pm

My November 2 Spine on the Mukasey hearings was unduly pessimistic about how Democrats would behave regarding

- Anonymous

November 4, 2007 at 2:58pm