This bomb still threatens

Last night I spent a hour or so reading a small pamphlet, Defusing the Ticking Time Bomb Scenario: why we must say No to torture, always. [PDF] Quite obviously this little book from a venerable European human rights outfit, the Association for the Prevention of Torture, is designed to teach any sane remnant in the United States how to argue against the pernicious influence of "24," Dick Cheney and George W. Bush on our moral character. We scare the heck out of its authors.

Some excerpts:

Once the assumptions hidden in the Ticking Bomb scenario have been exposed and challenged, several things should be clear. The scenario’s popularity of late is part of a concerted effort to create a legal exception to the prohibition against torture. The lack of precision in defining the scope of the scenario means that any such exception will necessarily be much broader than the “pure” ticking bomb scenario initially suggests.

... anyone who attempts to justify torture in the name of saving lives is assaulting the common humanity of us all. We must treat them with shame and revulsion as we would any proponent of genocide or slavery.

... arguments about the ticking bomb hypothetical are not truly about what we would do in some imagined future, it is about the kind of society we want to live in today and every day.

... we must recognize that being prepared to use torture, even in exceptional circumstances, implies certain institutional arrangements that seem fundamentally inconsistent with the kind of society most people desire. We can anticipate clandestine interrogation centres staffed with interrogators trained in torture techniques (presumably in some sort of torture academy). On our streets we would walk amongst men and women who have been encouraged to override their natural revulsion at causing pain and suffering to another human being helpless to defend himself. Researchers and entrepreneurs would work to discover and produce ever more horrific torture equipment and techniques. In the past these types of institutional arrangements have been associated with the Nazis, with other fascist states and totalitarian societies and dictatorships. What would it say about our society if we were to adopt the same techniques that were central to theirs? What kind of company do we wish to keep?

Sounds about right to me, but these sorts of arguments don't speak to the passionate need to hurt someone, most anyone, that gripped too many in the United States after 9/11. And 9/11 taught far too many of us to fear for the first time that the United States could be vulnerable to determined enemies. At the behest of lying leaders all too eager to legalize torture, the United States waltzed off down the "slippery slope."

Scott Shane, David Johnston and James Risen tell the story very clearly in the October 4 New York Times. In 2001, C.I.A. teams were under tremendous pressure to find any terrorists and terror plots that might exist. Their boss declared "9/11 changed everything." And it did.

From the secret sites in Afghanistan, Thailand and Eastern Europe where C.I.A. teams held Qaeda terrorists, questions for the lawyers at C.I.A. headquarters arrived daily. Nervous interrogators wanted to know: Are we breaking the laws against torture?

The Bush administration had entered uncharted legal territory beginning in 2002, holding prisoners outside the scrutiny of the International Red Cross and subjecting them to harrowing pressure tactics. They included slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding.

Never in history had the United States authorized such tactics. ... "We were getting asked about combinations -- 'Can we do this and this at the same time?'" recalled Paul C. Kelbaugh, a veteran intelligence lawyer who was deputy legal counsel at the C.I.A.'s Counterterrorist Center from 2001 to 2003. ...

The questions came more frequently, Mr. Kelbaugh said, as word spread about a C.I.A. inspector general inquiry unrelated to the war on terrorism. Some veteran C.I.A. officers came under scrutiny because they were advisers to Peruvian officers who in early 2001 shot down a missionary flight they had mistaken for a drug-running aircraft. The Americans were not charged with crimes, but they endured three years of investigation, saw their careers derailed and ran up big legal bills.

That experience shook the Qaeda interrogation team, Mr. Kelbaugh said. "You think you're making a difference and maybe saving 3,000 American lives from the next attack. And someone tells you, 'Well, that guidance was a little vague, and the inspector general wants to talk to you,'" he recalled.

They thought they were on the trail of the ticking time bomb -- but concurrently they feared too that they were stepping over a precipice.

To reassure the anxious torturers, John Yoo wrote "the torture memo" -- a facile legal opinion asserting to C.I.A. operatives that they were acting within the law. When word of this leaked out, the Department of Justice in the person of James Comey questioned the legal arguments. He wanted to make a stand.

[In 2005] Mr. Comey spoke of the "agonizing collisions" of the law and the desire to protect Americans. "We are likely to hear the words: 'If we don't do this, people will die,'" Mr. Comey said. But he argued that government lawyers must uphold the principles of their great institutions.

"It takes far more than a sharp legal mind to say 'no' when it matters most," he said. "It takes moral character. It takes an understanding that in the long run, intelligence under law is the only sustainable intelligence in this country."

Comey knew he was up against "a concerted effort to create a legal exception to the prohibition against torture" through a "ticking time bomb" scenario.

Shane, Johnston and Risen give a former naval lawyer the last word in their article:

"I know from the military that if you tell someone they can do a little of this for the country's good, some people will do a lot of it for the country's better," [John D.] Hutson [the Navy's top lawyer from 1997 to 2000] said.

By the way, despite Comey and Congress, the Bush Administration still keeps its "exception" open by executive order.