Clinton and selective torture

Alan Dershowitz, writing in the NY Sun, examines former President Clinton's remarks on National Public Radio endorsing selective torture when questioning certain terrorist suspects. Dershowitz long an advocate of a "torture warrant" was surprised to see Clinton agree with him,  but sadly noted  that  newspapers squirmed away from recognizing Clinton's proposal for what it was.

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Now I see that President Clinton has offered a similar proposal. In a recent interview on National Public Radio, Mr. Clinton was asked, as someone "who's been there," whether the president needs "the option of authorizing torture in an extreme case."

This is what he said in response: "Look, if the president needed an option, there's all sorts of things they can do. Let's take the best case, OK. 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 water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal.

"We have a system of laws here where nobody should be above the law, and you don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, 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."

Mr. Clinton was then asked whether he was saying there "would be more responsibility afterward for what was done." He replied: "Yeah, well, the president could take personal responsibility for it. But you do it on a case-by-case basis, and there'd be some review of it." Mr. Clinton quickly added that he doesn't know whether this ticking bomb scenario "is likely or not," but he did know that "we have erred in who was a real suspect or not."

Mr. Clinton summarized his views in the following terms: "If they really believe the time comes when the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of ‘em, then they can present it to the Foreign Intelligence Court, or some other court, just under the same circumstances we do with wiretaps. Post facto."

"But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantanamo, we're gonna be in real trouble."

It is surprising that this interview with the former president has received so little attention from those who were so quick to jump all over me. Mr. Clinton goes even further than I did. He would, in extreme cases, authorize the granting of a warrant "post facto" by a specialized court, as is now the case with national security wiretaps. What I proposed is that the warrant authorization be issued before the use of extreme measures is permitted. A preliminary warrant could be issued in a manner of minutes, to be followed up by a more thorough, after-the-fact evaluation and review.

This should be read in conjunction with the 152 page Al-Qaeda manual on counterintelligence at Threatswatch, which describes their perception of the strengths and weaknesses of US intelligence — and by implication how to defeat it. It tries to show that, despite its vast size and resources, the US intelligence system has serious bureaucratic limitations which conspire to prevent the deployment of human agents under effective cover as well as limit the sharing and evaluation of such intelligence as is gathered. Part of the problem lies in that American interests are so widely distributed and extensive that it is inherently difficult to protect it all.

Dershowitz's astonishment at Clinton's position should be nothing as compared to the public's, which has seen the Bush administration accused of trying to "legalize torture" by asking Congress for its terms of reference in treating detainees; and now it turns out that President Clinton, who after all started the practice of Rendition, was in favor of a torture warrant all along, having "been there." The differences between the parties is probably narrower than most think, except on the issue of who should be in office.

However that may be, Clinton's interview and al-Qaeda's description of the intelligence forces arrayed against them are reminders that the War on Terror, like any other war, is surpassingly ugly. Just now, a rumor, probably untrue, is sweeping the news channels about an al-Qaeda "dirty bomb" plot against seven NFL stadiums. An intelligence system that can decide whether such a threat is credible needs more than the authority to perform coercive interrogation. It needs collateral sources of information and good analysis, which as the al-Qaeda point out, it often lacks. Yet if the dirty bomb threat for example turned out to be credible what would one do about it? Those are hard questions. Not go to football games, I guess. If we cared enough about not coercively interrogating folks. About the only good day in wartime is Victory Day. And while every effort should be made to avoid torture and collateral damage the reality is that the sooner the enemy is beaten the better off everyone will be. Someone one wrote that "pacifism is the process of extending war to its greatest possible duration". That's unfair to pacifists. It's the process of of extending the war to its greatest possible duration in the hope that it will become more humane.