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Democrats Need To Be Honest About Torture

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By ALAN DERSHOWITZ

Published: November 11, 2007

I recently had occasion to discuss the Bush administration's war on terrorism with one of the highest ranking former officials responsible for planning that war. He asked me what I thought the administration's biggest mistake was.

I told him that it was not immediately going bipartisan following the attacks of 9/11. President Roosevelt had invited Republicans to join his Cabinet as the United States prepared to fight the Germans and the Japanese, and President Lincoln had included political opponents in his efforts to preserve the Union. Creating a united political front against an external enemy may blunt the partisan advantage expected from a successful military effort, but it helps to keep the country together at a time when partisan bickering can undercut the effort.

Now the Democrats appear to be making the same mistake. Most of the Democratic presidential candidates are seeking partisan advantage from what many Americans see as the Bush failures in the war against terrorism and especially its extension to Iraq and possibly, in the future, to Iran.

This pacifistic stance appeals to the left wing of the democratic electorate, which may have some influence on the outcome of democratic primaries, but which is far less likely to determine the outcome of the general election. Consider, for example, the contentious and emotionally laden issue of the use of torture in securing preventive intelligence information about imminent acts of terrorism - the so-called "ticking bomb" scenario. I am not now talking about the routine use of torture in interrogation of suspects or the humiliating misuse of sexual taunting that infamously occurred at Abu Ghraib. I am talking about that rare situation described by former President Clinton in an interview with National Public Radio:

"You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that's the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or waterboarding him or otherwise working him over."

He said Congress should draw a narrow statute "which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court." The president would have to "take personal responsibility" for authorizing torture in such an extreme situation. Sen. John McCain has also said that as president he would take responsibility for authorizing torture in that "one in a million" situation.

Although I am personally opposed to the use of torture, I have no doubt that any president - indeed any leader of a democratic nation - would in fact authorize some forms of torture against a captured terrorist if he believed that this was the only way of securing information necessary to prevent an imminent mass-casualty attack. The only dispute is whether he would do so openly with accountability or secretly with deniability. The former seems more consistent with democratic theory, the latter with typical political hypocrisy.

The kind of torture that President Clinton was talking about is not designed to secure confessions of past crimes, but rather to obtain real-time, actionable intelligence deemed necessary to prevent an act of mass-casualty terrorism.

This brings us to waterboarding. Michael Mukasey, whose confirmation as attorney general now seems assured, is absolutely correct, as a matter of constitutional law, that the issue of "waterboarding" cannot be decided in the abstract. Under prevailing precedents - some of which I disagree with - the court must examine the nature of the governmental interest at stake, and the degree to which the actions at issue shock the conscience, and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process.

The members of the judiciary committee who voted against Judge Mukasey, because of his unwillingness to support an absolute prohibition on waterboarding and all other forms of torture, should be asked the direct question: Would you authorize the use of waterboarding, or other non-lethal forms of torture, if you believed it was the only possible way of saving the lives of hundreds of Americans? Would you want your president to authorize extraordinary means of interrogation in such a situation? If so, by what means? If not, would you be prepared to accept responsibility for the preventable deaths?

The Democrats may lose the presidency if they are seen as the party of MoveOn.org, Michael Moore, Cindy Sheehan, Dennis Kucinich and those senators who voted against Judge Mukasey because he refused to posture on a difficult issue relating to national security. They will win if they are seen as just as tough but a lot smarter on how to deal with real threats to our national interests.

Alan Dershowitz teaches at Harvard Law School. He is the author, most recently, of "Finding Jefferson: A Lost Letter, a Remarkable Discovery, and the First Amendment in an Age of Terrorism."

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