Torture vs. Warrantless Surveillance: Why Choose?

Jacob Sullum | November 2, 2007

On the face of it, it's a bit surprising that Michael Mukasey's nomination as attorney general could fail over the issue of whether waterboarding is torture. The Senate Judiciary Committee did show considerable interest in the subject during his confirmation hearings, but you'd think members of Congress would be more offended by Mukasey's assertion that the Constitution authorizes the president to ignore the law when doing so is necessary "to defend the country." And if the concern is that the president will not so much ignore the law as reinterpret it to allow whatever he wants to do, Mukasey's suggestion that the NSA's warrantless wiretaps did not violate the Foreign Intelligence Surveillance Act (FISA) is more clearly wrong than his hedging about waterboarding.

In both cases, of course, Mukasey does not want to go on record as suggesting that the president or his underlings broke the law. The need to equivocate may be especially strong on the waterboarding issue, however, since Mukasey has said that if it is torture it is not only illegal but unconstitutional, "barred by the Fifth, the 14th, and the Eighth Amendments." If waterboarding somehow does not qualify as torture, it surely amounts to "cruel, inhuman, or degrading treatment," banned by the Detainee Treatment Act of 2005. During the hearings Mukasey acknowledged that the president is bound to obey that law, while he was decidedly less clear regarding FISA. Presumably he is worried about potential liability for interrogations that occurred before the Detainee Treatment Act was passed.

Then again, a month ago The New York Times reported that the Justice Department had secretly interpreted the Detainee Treatment Act to allow all of the CIA's post-9/11 interrogation techniques. Senators may be looking for assurances that Mukasey does not agree with that interpretation. But why are they more upset about Mukasey's refusal to say waterboarding is torture than they are about his apparent belief that the president is entitled to violate laws such as FISA? I assume it's because Congress already has acceded to the president's demands for warrantless surveillance authority but has not endorsed "coercive" interrogation techniques. That selective surrender, in turn, seems to be based on a judgment that torture is more un-American than allowing the government to monitor private conversations at will. But since the latter can lead to the former, especially when the government is determined to evade or ignore the law in the name of national security, there's no need to choose. We can have it all.

Comments

|11.2.07 @ 12:09PM|#

"...there's no need to choose. We can have it all."

We've come a long way, baby!

|11.2.07 @ 12:28PM|#

Warrantless surveillance is a clear violation of the constitution. No question there should be consequences for that. Heads need to roll, meaning people should loose their jobs. It would be nice to see someone go to prison over it, but I'm not holding my breath.

Torture on the other hand goes beyond the time honored and tacitly endorsed practice of ignoring the constitution. Torture is a war crime. The President, the Vice President, and the Secretary of Defense, at the very least need to stand trial in an international court on capital charges.

Timothy|11.2.07 @ 12:34PM|#

Or because the Democrats in Congress WANT THE SURVEILLANCE POWER FOR THEIR TEAM FROM NOW ON. That's the "duh" answer here.

Guy Montag|11.2.07 @ 12:51PM|#

All of these "torture" opponents sound like they grew up as the younger siblings in their family. Granted, "water boarding" might fall into real torture, but soon they start tossing in every other thing in the world, like sleep deprivation and such.

They never grew out of "mom! he's looking at me!" and now they want the government to be "mom" in so many more was other than the ones we usually talk about.

|11.2.07 @ 1:09PM|#

Guy Montag,
What is so wrong with treating detainees as human beings, deserving of respect and basic "God given" rights? Just curious.

|11.2.07 @ 1:18PM|#

Maybe the Congressional Committee should waterboard Mukasey in order to get him to be more cooperative.

It's not torture, after all...

Guy Montag|11.2.07 @ 1:30PM|#

What is so wrong with treating detainees as human beings, deserving of respect and basic "God given" rights? Just curious.

They are being treated as human beings. Huan beings who were fighting against us and have information about their buddies fighting against us, but they don't seem to want to give up that information so we must persuede them using innovative techniques.

|11.2.07 @ 1:52PM|#

...might have been fighting against us, and might have information. Guy seems pretty sure about this stuff; suspiciously sure. I think we need to use some innovative techniques to persuade Mr. Montag to tell us how he became certain that everyone in Gitmo deserves to be there.

Timothy|11.2.07 @ 1:53PM|#

I propose waterboarding Guy until he confesses to offenses against good sense and being a massive douchebag.

|11.2.07 @ 1:57PM|#

I forget, is Guy a joker, a troll, or a jackass?

Bazil|11.2.07 @ 1:58PM|#

Guy Montag, should you be captured by the "enemy" (as defined by today's latest definition) I wonder how long you'd last "being treated as a human being" the way you indifferently talk about people you can't possibly know are guilty.

|11.2.07 @ 1:59PM|#

They are being treated as human beings. Huan beings who were fighting against us and have information about their buddies fighting against us, but they don't seem to want to give up that information so we must persuede them using innovative techniques.

Thank you, Director Chertoff. I'm certain that, from now on, you'll be certain that all such designated fighters actually have such information to divulge before torturing them for it.

(dunno how to post a proper linky here; see:
http://en.wikipedia.org/wiki/Extraordinary_rendition#.22Erroneous_rendition.22

Dave Woycechowsky|11.2.07 @ 2:00PM|#

. . . to tell us how he became certain that everyone in Gitmo deserves to be there . . .

You know why he thinks it. He thinks US military personnel and contractors tell the truth and have good judgement about circumstantial evidence and reliability of informants.

He probably also thinks it is better to err on the side aggressive interrogation at the margin.

Back a couple years ago, most of the people in the US used to think like him. Now, it seems like most people don't, but Guy is staying the course. Probably because he makes more money when the US wages war than when it wages peace. You can't expect a man to speak against his economic best interests. He has car stuff he likes to buy, for crying out loud!

|11.2.07 @ 2:01PM|#

They are being treated as human beings. Huan beings who were fighting against us and have information about their buddies fighting against us, but they don't seem to want to give up that information so we must persuede them using innovative techniques.

Guy, why do you trust your government to only capture people who were actually fighting against us? Why, especially, after they've already released hundreds of people they determined (after months or years of captivity) were NOT enemy combatants?

Are you some kind of government-loving, state-trusting leftist?

|11.2.07 @ 2:05PM|#

Guy: Are there any limits you would place on how "persuasive" we can be? How medieval can we get?

JBinMO|11.2.07 @ 2:17PM|#

Correct me if I am wrong but doesn't the court get to interperate the laws?

|11.2.07 @ 2:21PM|#

With enough Cheetos and Dew, one can be a troll and a jackass.

R C Dean|11.2.07 @ 2:24PM|#

Correct me if I am wrong but doesn't the court get to interperate the laws?

The same courts who separate trials for "cocaine distribution" and "conspiracy to distribute cocaine" aren't double jeopardy?

I'm getting whiplash here. Are the courts Noble Defenders of Freedom or Incompetent Authoritarian Hacks?

|11.2.07 @ 2:24PM|#

The Rule of Law is so 9/10.

|11.2.07 @ 2:30PM|#

With enough Cheetos and Dew, one can be a troll and a jackass.

With the Dew added, wouldn't they be elevated to "extreeeme troll/jackass"?

JBinMO|11.2.07 @ 2:43PM|#

"Are the courts Noble Defenders of Freedom or Incompetent Authoritarian Hacks?"

Incompetent Authoritarian Hacks?

But at least if you have two groups of these people they will fight each other for the oppertunity to be the cheif Incompetent Authoritarian Hack. The problem is that one side has won.

Sean Healy|11.2.07 @ 3:12PM|#

Torture is just blowback for al Qaeda's imperial over-reach on 9/11, right? What did everyone expect to happen after they killed thousands of innocent people in one day? If they hadn't shit in our pool, we wouldn't be swimming in their toilet.

asd|11.2.07 @ 3:15PM|#

I saw Democratic Sen. Whitehouse on PBS the other day, and he said something like "Other than the waterboarding issue, I don't think my problems with Mukasey are enough to vote against approval." That blew my mind--Mukasey essentially said that Congress has no authority to regulate the president in certain matters, and taken literally, his statements imply that the courts have no authority to even determine what these matters are. The mind boggles...

JBinMO|11.2.07 @ 3:23PM|#

Sean Healy

You want to go swim in their toilet go ahead, but 2 things.
1, America is not their toilet
2, you shouldn't expect me to pay for it

Syloson of Samos|11.2.07 @ 3:25PM|#

Guy Montag,

If I recall correctly American soldiers in past wars have been tried and found guilty over the use of waterboarding.

Syloson of Samos|11.2.07 @ 3:29PM|#

Guy Montag,

I found this from the Washington Post:

Twenty-one years earlier, in 1947, the United States charged a Japanese officer, Yukio Asano, with war crimes for carrying out another form of waterboarding on a U.S. civilian. The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.

|11.2.07 @ 3:43PM|#

SoS, Thanks. Will this cause Guy to apologize? Will he slink into the netherworld of the internet, never to be heard from again? For the answers, tune in tommorow for "Days of Hit & Run".

|11.2.07 @ 3:48PM|#

J sub D

You should know better than that.

No soap opera character ever dies. It always turns out, years later, that they decided to disappear and their long lost identical twin happened to be wearing their clothes that day.

|11.2.07 @ 3:51PM|#

Look over there! It's Scott Beauchamp!

|11.2.07 @ 3:51PM|#

No soap opera character ever dies. It always turns out, years later, that they decided to disappear and their long lost identical twin happened to be wearing their clothes that day.

Damn you Aresen! Now you went and spoiled it for EVERYONE!
/sulk

Chris|11.2.07 @ 4:04PM|#

Amazing that there are still people brain-dead enough to claim that you can produce useful intelligence by abusing your prisoners.

|11.2.07 @ 4:39PM|#

I'm getting whiplash here. Are the courts Noble Defenders of Freedom or Incompetent Authoritarian Hacks?

Yes ?

T|11.2.07 @ 4:47PM|#

Chris,

Well, you can. It's just that you have to be able to correlate it against something else to determine if he's telling you the truth. It just seems like a low-percentage operation to me. You have to have enough info already to help sift his statements. If you have that much info, why do you need to torture the guy?

Of course, my primary objection against torture isn't the lack of effectiveness. I just don't want to turn 20 year olds into torturers.

Thomas Paine\'s Goiter|11.2.07 @ 5:16PM|#

but you'd think members of Congress would be more offended by Mukasey's assertion that the Constitution authorizes the president to ignore the law when doing so is necessary "to defend the country."

...because neither party wants to admit that they actually want a president on their side that is above the law?

|11.2.07 @ 5:18PM|#

"Amazing that there are still people brain-dead enough to claim that you can produce useful intelligence by abusing your prisoners."

Well, for some people, the truth isn't necessarily useful, is it?

|11.2.07 @ 6:15PM|#

I'm getting whiplash here. Are the courts Noble Defenders of Freedom or Incompetent Authoritarian Hacks?

That's nothing compared to the FISA courts. How we use to curse them. Then we found out the executive wasn't even bothering to get the rubber stamp. Now we're begging them to use the secret courts that, to my knoweldge, never declined a request.

|11.2.07 @ 6:52PM|#

That's nothing compared to the FISA courts. How we use to curse them. Then we found out the executive wasn't even bothering to get the rubber stamp. Now we're begging them to use the secret courts that, to my knoweldge, never declined a request.


Since it's a Star Chamber Secret Court, how would we ever know if they did decline a request.

|11.2.07 @ 8:05PM|#

The administration would have whined about their obstructionism when they were caught bypassing them.

greenish|11.2.07 @ 10:51PM|#

All of these "torture" opponents sound like they grew up as the younger siblings in their family...

I love it when people accuse libertarians of being childish...

|11.2.07 @ 11:52PM|#

This is really a mystery why torture is considered more horrific than wiretapping? Seriously?

Is there anybody here who would need to think for more than a second about whether they'd rather be tortured or have their conversation listened to?

Seriously, WTF?

|11.3.07 @ 12:46AM|#

joe

I would certainly agree that torture is worse than a warrantless wiretap.

However, I think you would agree that both indicate a deep disregard for due process and civil liberties.

I think you would also agree that a government which does the latter will be more likely to do the former.

|11.3.07 @ 4:50AM|#

All these arguments in favor of waterboarding - I've noticed something odd about them. They describe it as being so effective that it seems like magic. It "breaks" the subject everytime causing them to rapidly spill the whole truth or a stream of invaluable clues. It only has to be used once, or maybe twice at the very most. Yet at the same time its almost painless and doesn't do any lasting harm, so it isn't really torture.

Hell, if it works this well, it seems that the police, military and intelligence community can just throw away their interrogation handbooks, fire their expensive skilled interrogators, and all get waterboards instead.

Guy Montag|11.3.07 @ 12:43PM|#

Guy Montag, should you be captured by the "enemy" (as defined by today's latest definition) I wonder how long you'd last "being treated as a human being" the way you indifferently talk about people you can't possibly know are guilty.

You mean the guys who go straight to sawing our heads off?

I love how comments here got as far away from the meaning of my original comment as possible too!

|11.3.07 @ 1:46PM|#

I love how comments here got as far away from the meaning of my original comment as possible too!

Guy, your original comment was just silly. First you suggest that people who object to harsh interrogation techniques want the government to be like a mother, while your next comment implies that we should trust the government to only arrest guilty people.

How is your position that the government only arrests and tortures guilty people (or that we should let the government arrest and torture a few innocent people) any less socialist (state-worshiping) than someone who thinks the government can really provide quality medical care and/or education to all its citizens? Especially in light of all the documented evidence that the government regularly arrests innocent people?

I think you have a secret crush on the government, as long as it's one run by Republican party.

|11.4.07 @ 12:24PM|#

Guy Montag won't let little things like morality, civilization, law, treaties, and conscience interfere with the gathering of intelligence every bit as valuable as that we tortured out of the people who told us about Saddam's longstanding policy of helping al Qaeda get nuclear weapons.

|11.4.07 @ 12:27PM|#

R-S-N,

I agree that both are civil liberties violations, and I agree that a Big Brother government is more likely to act like a Big Brother government.

But I have absolutly no problem understanding or agreeing with the strategy of highlighting torture as the greatest of the horribles in order to short circuit the appointment of someone who would allow a whole spectrum of civil liberties violations.

|11.4.07 @ 10:42PM|#

But I have absolutly no problem understanding or agreeing with the strategy of highlighting torture as the greatest of the horribles in order to short circuit the appointment of someone who would allow a whole spectrum of civil liberties violations.

Amen.

The only thing I would add is that, even absent the evidence of torture, I would tend to assume that a government which is conducting warrantless wiretaps is also torturing people. I generally don't like "slippery slope" as an argument, but I think that once a government has decided it has the right to violate one of the civil liberties, it will ultimately decide it may violate them all.